FCC v. Fox Television Stations, Inc.- Brief (Merits)

No. 07-582

 

In the Supreme Court of the United States

FEDERAL COMMUNICATIONS COMMISSION, ET AL., PETITIONERS

v.

FOX TELEVISION STATIONS, INC., ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF FOR THE PETITIONERS

PAUL D. CLEMENT
Solicitor General
Counsel of Record
GREGORY G. KATSAS
Acting Assistant Attorney
General
GREGORY G. GARRE
Deputy Solicitor General
ERIC D. MILLER
Assistant to the Solicitor
General
THOMAS M. BONDY
ANNE MURPHY
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

MATTHEW B. BERRY
General Counsel
JOSEPH R. PALMORE
Deputy General Counsel
JACOB M. LEWIS
Associate General Counsel
NANDAN M. JOSHI
Counsel
Federal Communications
Commission
Washington, D.C. 20554

 

QUESTION PRESENTED

Whether the court of appeals erred in striking down the Federal Communications Commission's determin ation that the broadcast of vulgar expletives may violate federal restrictions on the broadcast of "any obscene, in decent, or profane language," 18 U.S.C. 1464; see 47 C.F.R. 73.3999, when the expletives are not repeated.

PARTIES TO THE PROCEEDING

Petitioners are the Federal Communications Com mission and the United States of America.

Respondents who were petitioners in the court of appeals below are Fox Television Stations, Inc.; CBS Broadcasting Inc.; WLS Television, Inc.; KTRK Tele vision, Inc.; KMBC Hearst-Argyle Television, Inc.; and ABC Inc.

Respondents who were intervenors in the court of appeals below are NBC Universal, Inc.; NBC Telemun do License Co.; NBC Television Affiliates; FBC Tele vision Affiliates Association; CBS Television Network Affiliates; Center for the Creative Community, Inc., do ing business as Center for Creative Voices in Media, Inc.; and ABC Television Affiliates Association.

 

 

In the Supreme Court of the United States

No. 07-582

FEDERAL COMMUNICATIONS COMMISSION, ET AL., PETITIONERS

v.

FOX TELEVISION STATIONS, INC., ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE PETITIONERS

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-60a) is reported at 489 F.3d 444. The order of the Federal Communications Commission (Pet. App. 61a-142a) is re ported at 21 F.C.C.R. 13,299.

JURISDICTION

The judgment of the court of appeals (Pet. App. 143a- 144a) was entered on June 4, 2007. On August 23, 2007, Justice Ginsburg extended the time within which to file a petition for a writ of certiorari to and including Octo ber 4, 2007. On September 24, 2007, Justice Ginsburg further extended the time to November 1, 2007, and the petition was filed on that date. The petition for a writ of certiorari was granted on March 17, 2008. The jurisdic tion of this Court rests on 28 U.S.C. 1254(1).

STATUTES AND REGULATIONS INVOLVED

Pertinent statutory and regulatory provisions are set out in an appendix to the petition for a writ of certiorari. Pet. App. 145a-149a.

STATEMENT

1. a. In the Communications Act of 1934, 47 U.S.C. 151 et seq., Congress sought "to maintain the control of the United States over all the channels of radio trans mission" by "provid[ing] for the use of such channels" under licenses that are granted "for limited periods of time," 47 U.S.C. 301, and that are issued and renewed only upon a finding that "the public interest, conve nience, and necessity" will thereby be served. 47 U.S.C. 309(a), (k)(1)(A). A broadcast licensee is "granted the free and exclusive use of a limited and valuable part of the public domain; when he accepts that franchise it is burdened by enforceable public obligations." CBS, Inc. v. FCC, 453 U.S. 367, 395 (1981) (quotation marks omit ted). Among a licensee's public-interest obligations is the duty not to transmit indecent material during times of the day when children are likely to be in the audience. See Enforcement of Prohibitions Against Broadcast In decency in 18 U.S.C. § 1464, 4 F.C.C.R. 8358, 8358 ¶ 2 (1989).

The duty of licensees to refrain from the broadcast of indecent material was first set forth in the Radio Act of 1927, ch. 169, § 29, 44 Stat. 1172. It is now codified at 18 U.S.C. 1464, which makes it unlawful to "utter[] any ob scene, indecent, or profane language by means of radio communication." As directed by Congress, the Federal Communications Commission (FCC or Commission) has adopted regulations specifying that indecent material may not be broadcast between the hours of 6 a.m. and 10 p.m. 47 C.F.R. 73.3999(b) (adopted pursuant to Public Telecommunications Act of 1992, Pub. L. No. 102-356, § 16(a), 106 Stat. 954); see Action for Children's Televi sion v. FCC, 58 F.3d 654, 669-670 (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S. 1043 (1996) (ACT III). The Commission does not regulate indecent broadcasts out side that time period. The FCC has authority to enforce the indecency prohibition by, among other things, im posing civil forfeitures, see 47 U.S.C. 503(b)(1)(B) and (D), or taking violations into account during license-re newal proceedings, see 47 U.S.C. 307 (2000 & Supp. V 2005); 47 U.S.C. 309(k).

b. In FCC v. Pacifica Foundation, 438 U.S. 726 (1978), this Court upheld the constitutionality of the FCC's authority to regulate indecent broadcasts. At issue in Pacifica was the midday radio broadcast of George Carlin's monologue "Filthy Words." Responding to a listener complaint, the Commission determined that the broadcast violated Section 1464. In reaching that conclusion, it applied a "concept of 'indecent' [that] is intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience." Id. at 731- 732 (quoting In re Citizen's Complaint Against Pacifica Found. Station WBAI (FM), New York, 56 F.C.C.2d 94, 98 (1975) (WBAI)). As the Court observed, "[t]he Com mission's decision rested entirely on a nuisance rationale under which context is all-important," and that "re quires consideration of a host of variables." Id. at 750.

In rejecting a constitutional challenge to the Commis sion's enforcement of Section 1464, the Court explained that, "of all forms of communication, it is broadcasting that has received the most limited First Amendment protection." Pacifica, 438 U.S. at 748. That is in part because "the broadcast media have established a uniquely pervasive presence in the lives of all Ameri cans" in that "material presented over the airwaves con fronts the citizen, not only in public, but also in the pri vacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder." Ibid. In addition, the Court emphasized, "broadcasting is uniquely accessible to children, even those too young to read," and the broadcast of indecent language can "enlarge[] a child's vocabulary in an in stant." Id. at 749. The Court concluded that "the gov ernment's interest in the well-being of its youth and in supporting parents' claim to authority in their own household justified the regulation of otherwise protected expression." Ibid. (internal quotation marks and cita tion omitted); see id. at 762 (Powell, J., concurring). The Court rejected the contention that "one may avoid fur ther offense by turning off the radio when he hears inde cent language," comparing it to "saying that the remedy for an assault is to run away after the first blow." Id. at 748-749.

c. For several years after Pacifica, the Commission enforced the indecency prohibition only against "mate rial that closely resembled the George Carlin mono logue," that is, material that "involved the repeated use, for shock value, of words similar or identical to those" used by Carlin. In re Infinity Broad. Corp. of Penn., 3 F.C.C.R. 930, 930 ¶ 4 (1987) (Infinity Reconsideration Order). In 1987, however, the Commission determined that such a "highly restricted enforcement standard * * * was unduly narrow as a matter of law" because it "focus[ed] exclusively on specific words rather than the generic definition of indecency." Id. at 930 ¶ 5. Accord ingly, the Commission concluded that, in enforcing Sec tion 1464, it would apply the generic indecency test ar ticulated in Pacifica, that is, whether the language "de scribes, in terms patently offensive as measured by con temporary community standards for the broadcast me dium, sexual or excretory activities or organs, when there is a reasonable risk that children may be in the audience." Id. at 930 ¶¶ 2, 5.1

In making that change, the Commission recognized that "the question of whether material is patently offen sive requires careful consideration of context." Infinity Reconsideration Order, 3 F.C.C.R. at 932 ¶ 16. Despite its renewed emphasis on context, however, the Commis sion stated that "[i]f a complaint focuses solely on the use of expletives * * * deliberate and repetitive use * * * is a requisite to a finding of indecency." In re Pacifica Found., Inc., 2 F.C.C.R. 2698, 2699 ¶ 13 (1987).

The District of Columbia Circuit upheld the Commis sion's decision to move beyond its narrow post-Pacifica policies. See Action for Children's Television v. FCC, 852 F.2d 1332 (1988) (R.B. Ginsburg, J.) (ACT I). As the court explained, "[s]hort of the thesis that only the seven dirty words are properly designated indecent * * * some more expansive definition must be at tempted." Id. at 1338. Because "[t]he FCC rationally determined that its former policy could yield anomalous, even arbitrary results," and "[n]o reasonable formula tion tighter than the one the Commission has announced has been suggested," the court concluded that the agency had provided an adequate explanation for its policy. Ibid.2

d. In 2001, the Commission issued a policy state- ment to provide further guidance concerning the inde cency standard. See In re Industry Guidance on the Commission's Case Law Interpreting 18 U.S.C. § 1464 & Enforcement Policies Regarding Broadcast Inde cency, 16 F.C.C.R. 7999, 7999 ¶ 1 (2001) (Industry Guid ance). In that statement, the Commission explained that it applies a two-part test to determine whether a broad cast is indecent. First, the material at issue "must fall within the subject matter scope of [the] indecency defi nition-that is, the material must describe or depict sex ual or excretory organs or activities." Id. at 8002 ¶ 7. Second, "the broadcast must be patently offensive as measured by contemporary community standards for the broadcast medium." Id. at 8002 ¶ 8.

The policy statement reiterated that whether a broadcast is "patently offensive" turns on "the full con text" in which the material is broadcast and is therefore "highly fact-specific." Industry Guidance, 16 F.C.C.R. at 8002-8003 ¶ 9. The Commission set out three "princi pal factors" that it considered "significant" in evaluating patent offensiveness: "(1) the explicitness or graphic nature of the description or depiction of sexual or excre tory organs or activities; (2) whether the material dwells on or repeats at length descriptions of sexual or excre tory organs or activities; [and] (3) whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value." Id. at 8003 ¶ 10 (emphases omitted). With re spect to the second factor, the policy statement noted that "[r]epetition of and persistent focus on sexual or excretory material" may "exacerbate the potential offen siveness of broadcasts," but that "even relatively fleet ing references may be found indecent where other fac tors"-such as the use of "graphic or explicit" lan guage-"contribute to a finding of patent offensiveness." Id. at 8008-8009 ¶¶ 17, 19.

e. In January 2003, the NBC television network broadcast the Golden Globe Awards. In accepting the award for Best Original Song, the rock singer Bono stated: "This is really, really fucking brilliant. Really, really great." In re Complaints Against Various Broad. Licensees Regarding Their Airing of the "Golden Globe Awards" Program, 19 F.C.C.R. 4975, 4976 n.4 (2004) (Golden Globe Awards Order). The Commission con cluded that the broadcast of Bono's remark was indecent even though Bono's use of the F-Word was not "sus tained or repeated." Id. at 4980 ¶ 12.3 The Commission explained that, even when used merely as an "intensi fier," the F-Word falls within the subject-matter scope of indecency regulation because, given its "core mean ing," the word "inherently has a sexual connotation." Id. at 4978 ¶ 8. The Commission also found that Bono's re mark was "patently offensive" because "[t]he 'F-Word' is one of the most vulgar, graphic and explicit descrip tions of sexual activity in the English language"; its use "invariably invokes a coarse sexual image"; and its broadcast "on a nationally telecast awards ceremony[] was shocking and gratuitous." Id. at 4979 ¶ 9. The Commission observed that NBC had not claimed that its broadcast of the word had "any political, scientific or other independent value." Ibid.

The Commission recognized that its decision "de part[ed]" from prior cases insofar as they stated that "isolated or fleeting use of the 'F-Word' or a variant thereof in situations such as this is not indecent," and it made clear "that such cases are not good law to that ex tent." Golden Globe Awards Order, 19 F.C.C.R. at 4980 ¶ 12. Instead, the Commission concluded, "the mere fact that specific words or phrases are not sustained or re peated does not mandate a finding that material that is otherwise patently offensive to the broadcast medium is not indecent." Ibid.

Although the Commission concluded that Bono's re mark was indecent, it did not impose a sanction. Be cause "prior Commission and staff action have indicated that isolated or fleeting broadcasts of the 'F-Word' such as that here are not indecent," the Commission deter mined that NBC "did not have the requisite notice to justify a penalty." Golden Globe Awards Order, 19 F.C.C.R. at 4980, 4982 ¶¶ 12, 15.

2. a. This case arises out of two broadcasts that aired before the Commission released the Golden Globe Awards Order. On December 9, 2002, the Fox television network broadcast the 2002 Billboard Music Awards beginning at 8 p.m. eastern standard time. During that broadcast, the entertainer Cher received an "Artist Achievement Award." In her acceptance speech, she said:

I've had unbelievable support in my life and I've worked really hard. I've had great people to work with. Oh, yeah, you know what? I've also had critics for the last 40 years saying that I was on my way out every year. Right. So fuck 'em. I still have a job and they don't.

Pet. App. 115a-116a.

The following year, on December 10, 2003, Fox broadcast the 2003 Billboard Music Awards beginning at 8 p.m. eastern standard time. Nicole Richie and Paris Hilton, the stars of Fox's show "The Simple Life," pre sented one of the awards. During their presentation, they engaged in the following exchange:

Paris Hilton: Now Nicole, remember, this is a live show, watch the bad language.

Nicole Richie: Okay, God.

Paris Hilton: It feels so good to be standing here tonight.

Nicole Richie: Yeah, instead of standing in mud and [audio blocked]. Why do they even call it "The Sim ple Life?" Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple.

Pet. App. 69a-71a.

b. The Commission received complaints from view ers about both Billboard Music Awards broadcasts. See, e.g., J.A. 19 ("My son and I were watching the 2003 Bill board Music Awards the other night. * * * [M]y son asked me what f**king meant."); J.A. 20 ("It is hard enough to teach your children manners and decent be havior without showing young adults on the TV using" expletives.). It issued an order addressing those com plaints as well as complaints against numerous other programs, including (1) several "NYPD Blue" episodes aired by ABC in which, among other things, a character on the show used the term "bullshit," and (2) an episode of CBS's "The Early Show" in which a contestant on CBS's "Survivor: Vanuatu" referred to another contes tant as a "bullshitter" in a live interview. J.A. 86-109. The Commission concluded that each of those four pro grams contained indecent language. J.A. 86. As in the Golden Globe Awards Order, however, the Commission did not impose any sanction because it concluded that broadcast licensees lacked adequate notice of its new policy regarding the airing of expletives. Ibid.

c. Respondents petitioned for review, and the cases were consolidated in the United States Court of Appeals for the Second Circuit. Pet. App. 66a. At the Commis sion's request, the court of appeals granted a remand in order to provide the agency an opportunity to address in the first instance the broadcasters' specific challenges to the Commission's determinations with regard to their programs. Id. at 67a-68a.

d. On remand, the Commission vacated the relevant portions of its earlier order. Pet. App. 68a. It dismissed the complaints against "NYPD Blue" on procedural grounds, id. at 129a-131a, and it concluded that the use of an expletive on "The Early Show" was not indecent because it occurred in the context of a "news interview," id. at 125a-128a. The Commission explained that, "re gardless of whether such language would be actionable in the context of an entertainment program," it was not "actionably indecent * * * in this context." Id. at 128a.

At the same time, the Commission reaffirmed its con clusion that the broadcast of the 2002 and 2003 Billboard Music Awards violated the prohibitions against the broadcast of indecent material. Pet. App. 69a-124a. Applying the framework set out in the 2001 Industry Guidance, the Commission concluded that the expletives aired during the Billboard Music Awards were sexual or excretory references that fell within the subject-matter scope of the indecency definition. Fox did not dispute that Richie's use of the S-Word referred to excrement. Id. at 73a. In addition, the Commission reaffirmed that the F-Word (used by both Richie and Cher) inherently "has a sexual connotation even if the word is not used literally" because "the word's power to 'intensify' and offend derives from its implicit sexual meaning." Id. at 73a-74a; see id. at 117a-118a. The Commission also con cluded that both broadcasts were "patently offensive." Id. at 74a, 118a, 120a. With respect to both broadcasts, the Commission found that the language used was not only graphic and shocking-particularly in the context of nationally televised awards programs viewed by a substantial number of children-but was also gratuitous. Id. at 76a-77a (for the 2003 broadcast, 2.3 million view ers (23.4% of the audience) were under age 18, and 1.1 million viewers (11% of the audience) were under age 12); 119a-120a (for the 2002 broadcast, 2.6 million view ers (27.9% of the audience) were under age 18, and 1.2 million viewers (12.7% of the audience) were under age 12). Indeed, the Commission noted, Fox did not argue that the expletives at issue "had any artistic merit or were necessary to convey any message." Id. at 76a n.44; see id. at 120a n.191.

As in the Golden Globe Awards Order, the Commis sion rejected the argument that the fleeting nature of the utterances should preclude a finding that the lan guage was indecent. Pet. App. 82a-83a. The Commis sion explained that it was "artificial" to maintain a dis tinction between "expletives," which had to be repeated to be actionable, and literal "descriptions or depictions of sexual or excretory functions," which did not. Id. at 82a; see Industry Guidance, 16 F.C.C.R. at 8008, 8009 ¶¶ 17, 19. As the Commission observed, "[i]n evaluating whether material is patently offensive, the Commission's approach has generally been to examine all factors rele vant to that determination." Pet. App. 83a. The Com mission accordingly found that "categorically requiring repeated use of expletives in order to find material inde cent" would be "inconsistent with our general approach to indecency enforcement, which stresses the critical nature of context." Ibid. The Commission noted that Pacifica did not require it to "ignore 'the first blow' to the television audience in the circumstances presented here." Ibid. The Commission also observed that "grant ing an automatic exemption for 'isolated or fleeting' ex pletives" would allow broadcasters "to air any one of a number of offensive sexual or excretory words, regard less of context, with impunity during the middle of the afternoon provided that they did not air more than one expletive in any program segment." Id. at 84a-85a. Per mitting "[s]uch a result," the Commission explained, "would be inconsistent with our obligation to enforce the law responsibly." Id. at 85a.

The Commission again declined to sanction Fox be cause "it was not clear at the time that broadcasters could be punished for the kind of comment at issue here." Pet. App. 122a; see id. at 113a. It therefore found no need to address whether the broadcast-inde cency violations were "willful" within the meaning of 47 U.S.C. 503(b), which authorizes the Commission to im pose monetary forfeitures for "willful[]" or "repeated[]" violations of the Communications Act or Commission rules. Pet. App. 114a; 124a n.206. And because it im posed no sanction, the Commission stated that it would not consider its indecency findings "to have an adverse impact upon" the Fox stations that participated in the broadcasts, either "as part of the [license] renewal pro cess or in any other context." Id. at 113a-114a, 124a.

3. A divided panel of the court of appeals vacated and remanded. Pet. App. 1a-60a.

a. The court of appeals concluded that the Commis sion's policy regarding isolated expletives was "arbi trary and capricious under the Administrative Proce dure Act" because the Commission had "failed to articu late a reasoned basis for [its] change in policy." Pet. App. 2a. Taking the view that the "primary reason for the crackdown on fleeting expletives" was to protect "viewers (including children)" from the "first blow" of an expletive, the court of appeals stated that the Commis sion had failed to provide a "reasonable explanation for why it has changed its perception that a fleeting exple tive was not a harmful 'first blow' for the nearly thirty years between Pacifica and Golden Globes." Id. at 25a.

Even "[m]ore problematic," according to the court of appeals, was the fact that "the Commission does not take the position that any occurrence of an expletive is indecent." Pet. App. 25a-26a. Because the Commission did not flatly prohibit the broadcast of vulgar expletives in every circumstance, the court concluded that "the record simply does not support the position that the Commission's new policy was based on its concern with the public's mere exposure to this language on the air waves." Id. at 27a-28a. Even though the court recog nized that any "per se ban would likely raise constitu tional questions above and beyond the concerns raised by the [Commission's] current policy," id. at 26a n.7, the court nonetheless believed that it was arbitrary for the Commission to prohibit isolated expletives only in cir cumstances where their utterance was patently offen sive.

The court of appeals also took issue with the Commis sion's determination that an expletive such as the F- Word has an inescapably sexual connotation, stating that "[t]his defies any commonsense understanding of these words, which, as the general public well knows, are often used in everyday conversation without any 'sex ual or excretory' meaning." Pet. App. 29a. In addition, the court dismissed as "divorced from reality" the Com mission's concern that a "per se exemption for fleeting expletives would 'permit broadcasters to air expletives at all hours of the day so long as they did so one at a time.'" Id. at 30a (citation omitted). And it faulted the Commission for failing to produce "any evidence that suggests a fleeting expletive is harmful," much less that any such harm was "serious enough to warrant govern ment regulation." Id. at 32a.

Although the court of appeals "refrain[ed] from de ciding the various constitutional challenges * * * raised by the Networks," it made certain "observations" regarding the constitutionality of the Commission's broadcast-indecency policies. Pet. App. 35a. In those comments, which the court described as "dicta," id. at 35a n.12, the court "question[ed] whether the FCC's indecency test can survive First Amendment scrutiny," id. at 36a. Nevertheless, because the court decided the case on the "narrow ground" that the Commission's ex planation for its policy was arbitrary and capricious un der the Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., it vacated and remanded "so that the Com mission can set forth [its] analysis." Id. at 45a.

b. Judge Leval dissented. Pet. App. 46a-60a. In his view, the Commission had complied with the APA be cause it provided a "sensible" reason for its "relatively modest change of standard." Id. at 49a. In addition, he concluded that "[w]hat we have [here] is at most a differ ence of opinion between a court and an agency," and that in light of the Commission's explanation and "the defer ence courts must give to the reasoning of a duly autho rized administrative agency in matters within the agency's competence," there was no basis for the court to substitute its judgment for the Commission's in this case. Id. at 58a-59a.

Judge Leval observed that "the Commission's central explanation for the change was essentially its perception that the 'F-Word' is not only of extreme and graphic vulgarity, but also conveys an inescapably sexual conno tation." Pet. App. 49a. The FCC therefore "concluded that the use" of that expletive, "even in a single fleeting instance without repetition," was "likely to constitute an offense to the decency standards of § 1464." Id. at 50a. "In other words," Judge Leval stated, "the Commission found, contrary to its earlier policy, that the word is of such graphic explicitness in inevitable reference to sex ual activity that absence of repetition does not save it from violating the standard of decency." Id. at 52a.

Unlike the majority, Judge Leval was not troubled by the Commission's decision not to "follow an all-or- nothing policy." Pet. App. 53a. Instead, he explained that the Commission "attempt[ed] to draw context- based distinctions, with the result that no violation will be found in circumstances where usage is considered sufficiently justified that it does not constitute inde cency." Ibid. Far from an example of "irrationality," Judge Leval stated, the policy "is an attempt on the part of the Commission over the years to reconcile conflicting values through standards which take account of con text." Id. at 54a-55a. As Judge Leval explained, the Commission's context-driven approach "is in no way a consequence of the Commission's change of standard for fleeting expletives. It applies across the board to all circumstances." Id. at 53a. Thus, the "majority's criti cism of inconsistency is not properly directed against the change of standard here in question," which "[i]f anything * * * has made the Commission more consis tent rather than less" by ensuring that "the same con text-based factors will apply to all circumstances." Id. at 54a.

SUMMARY OF ARGUMENT

The court of appeals erred in concluding that the Commission's change in policy regarding isolated exple tives during times when children are likely to be in the audience violates the APA.

Congress has directed the Federal Communications Commission to enforce the statutory prohibition on the broadcast of "any obscene, indecent, or profane" lan guage over the public airwaves. 18 U.S.C. 1464. In car rying out that duty, the Commission employs a contex tual analysis that this Court upheld in FCC v. Pacifica Foundation, 438 U.S. 726 (1978). Indeed, in Pacifica, the Court recognized that "context is all-important." Id. at 750. Until recently, the Commission made one factor dispositive in its analysis in certain cases by holding that the utterance of a single vulgar expletive could not be found indecent, no matter how strongly other contextual factors weighed in favor of such a finding. As the Com mission reaffirmed in the order at issue here, that per se, one-free-expletive rule was inconsistent with a con text-based approach to broadcast indecency enforce ment. In abandoning that rule, the Commission acknow ledged that it was adopting a new indecency enforce ment policy, declined to impose fines, and provided a reasoned explanation for the change. That explanation fully satisfied the requirements of the APA and is well within the zone of discretion in which an administrative agency may operate in carrying out its statutory man date.

The criticisms by the court of appeals of the Commis sion's change of policy are unfounded. Not only do those criticisms rest on an inappropriate second-guessing of policy judgments committed to the agency by Congress, they also have less to do with the Commission's revised policy on isolated expletives than they do with the enter prise of broadcast-indecency enforcement in general. In that respect, the analysis of the court of appeals rests on premises rejected by this Court in Pacifica.

The court of appeals dismissed the Commission's concern for protecting audiences likely to include chil dren from the broadcast of a single expletive because the Commission does not take the position that the broadcast of vulgar expletives is always indecent. But nothing in the APA requires the Commission to operate with the blunt instrument of an "all-or-nothing" policy in this area; under a contextual analysis, different con texts can appropriately lead to different results, even where the same word is concerned. In any number of ways, the use of an expletive by, for example, a wire tapped organized-crime figure on a news program is far removed from the use of the same word in a dialogue on an awards show. There is no statutory reason why the FCC is compelled to treat such fundamentally different cases the same way.

The court of appeals also erred in dismissing the Commission's determination that the F-Word has a sex ual connotation even when used in a non-literal sense as an intensifier or as part of an insult. The Commission, after having studied the issue, is in a better position to evaluate the connotations of language. As the Commis sion explained, the F-Word is effective when used to intensify or insult precisely because it has an offensive sexual connotation. Moreover, fine points of the distinc tions between denotations and connotations may be lost on children seeking an explanation of the word's mean ing from their parents. The logic of the court's contrary rationale would suggest that the F-Word and other vul gar expletives should escape indecency regulation, even if repeated, unless it could be proved that the intent of the speaker was to use the words in accordance with their literal meanings.

The court of appeals had no basis for demanding that the Commission demonstrate that broadcasters would flood the airwaves with expletives in the absence of a change in policy. It was sufficient for the Commission to point out that the logic of its prior policy, which would permit the airing of unlimited expletives one at a time, was inconsistent with responsible enforcement of the statute. In any event, making a predictive judgment on a matter within an agency's realm of expertise is the responsibility of the agency, not the courts. Nor was the Commission required to amass evidence that the broad cast of isolated expletives would be harmful to children. The Commission's duty is to enforce the statute that Congress enacted, not to second-guess the evidentiary basis for its enactment. In any event, courts have long recognized that exposure to indecent material risks harm to a child's psychological and moral development to an extent that makes it the proper subject of regula tion. The court of appeals had no basis to override the Commission's judgment on the risks that isolated exple tives pose to children during the broadcast times at is sue.

Finally, because the adequacy of the Commission's explanation for its revised policy was the only issue ad dressed by the court of appeals, the Court should re mand the case to allow that court to consider, in the first instance, respondents' other challenges to the Commis sion's order. Although the court of appeals made vari ous "observations" about the constitutional challenges raised by respondents, it explicitly "refrain[ed] from deciding [those] constitutional challenges." Pet. App. 35a. And there is no reason for this Court to depart from its customary practice and reach out to decide con stitutional questions not passed on below.

ARGUMENT

THE COURT OF APPEALS ERRED IN INVALIDATING THE COMMISSION'S POLICY UNDER THE APA

A. The FCC Satisfied The Requirements Of The APA Be cause It Gave A Reasonable Explanation For Its Changed Enforcement Policy

As this case comes to this Court it turns on the appli cation of well-settled principles of administrative law. Under the APA's arbitrary-and-capricious standard, "[t]he scope of review * * * is narrow and a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); see 5 U.S.C. 706(2)(A). That is no less true when the policy under review re flects a change in position. The APA does not lock an agency into a single view for all time. Instead, under the APA, a court must uphold an agency's revised policy so long as the agency has given a reasoned explanation for the change.

This case concerns the Commission's policy on the broadcast of certain expletives during the time when children are most likely to be in the audience. The FCC expressly acknowledged that the enforcement policy first announced in the Golden Globe Awards Order rep resented a reversal of its prior policy, which had effec tively imposed a per se rule under which isolated exple tives could not be deemed indecent. The Commission accordingly refrained from imposing fines for the viola tions. The Commission gave several reasons for the change, including that the revised policy harmonized the treatment of expletives with the Commission's general approach to indecency enforcement, under which con text is "all-important," Pacifica, 438 U.S. at 750, and no one factor is dispositive. The agency's explanation fully satisfied the requirements of the APA, and the court of appeals erred in setting aside the Commission's order.

1. The APA permits an agency to change its policy as long as it provides a reasonable explanation for doing so

The APA does not require "[r]egulatory agencies [to] establish rules of conduct to last forever." State Farm, 463 U.S. at 42 (quoting American Trucking Ass'ns v. Atchison, Topeka & Santa Fe Ry. Co., 387 U.S. 397, 416 (1967)). To the contrary, this Court has recognized that "[a]n agency's view of what is in the public interest may change, either with or without a change in circum stances." Id. at 57 (quoting Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir. 1970), cert. denied, 403 U.S. 923 (1971)). Indeed, far from being locked into one position by the APA, an agency has an obligation to reconsider "the wisdom of its policy on a continuing basis." NCTA v. Brand X Internet Servs., 545 U.S. 967, 981 (2005) (quoting Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 863-864 (1984)).

When an agency changes its policy, the APA requires only that it "supply a reasoned analysis for the change." State Farm, 463 U.S. at 42. That analysis may show that the change is required by changed circumstances. But an agency also may alter its policy for the simple reason that, in its judgment, the "prior policy failed to implement properly the statute." Rust v. Sullivan, 500 U.S. 173, 187 (1991); see Brand X, 545 U.S. at 981 (ex plaining that an agency may make a policy change "in response to changed factual circumstances, or a change in administrations") (citation omitted). The "discretion provided by the ambiguities of a statute" is left "with the implementing agency," not the reviewing court. Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 742 (1996).

2. The Commission acknowledged its change in policy

As the court of appeals recognized, Pet. App. 20a- 21a, the Commission expressly acknowledged that its abandonment of a per se rule requiring that expletives be repeated in order to be indecent represented a change in policy. In the Golden Globe Awards Order, the Commission noted that "prior Commission and staff action have indicated that isolated or fleeting broadcasts of the 'F-Word' * * * are not indecent or would not be acted upon," and it explained "that any such interpreta tion is no longer good law." 19 F.C.C.R. at 4980 ¶ 12. The Commission further stated: "We now depart from * * * cases holding that isolated or fleeting use of the 'F-Word' or a variant thereof in situations such as this is not indecent." Ibid. Instead, the Commission ex plained, "the mere fact that specific words or phrases are not sustained or repeated does not mandate a find ing that material that is otherwise patently offensive to the broadcast medium is not indecent." Ibid.

In the order at issue here, the Commission elabo rated on its statements in the Golden Globe Awards Or der. It explained that the decisions that had established a per se rule "that expletives had to be repeated to be indecent" were "seriously flawed" and were "appropri ately disavowed." Pet. App. 82a-83a.

Respondents suggest that the Commission said in its order "that its indecency policy had not changed and that no reasoned basis for that change was required." Fox Br. in Opp. 15; see NBC Br. in Opp. 17. That claim ignores the relevant portions of the Commission's or ders, and it overlooks that the Commission acknowl edged its change in policy not only in its words but also in its actions. The Commission did not sanction Fox for either broadcast at issue here, and, in the case of the 2002 Billboard Music Awards, the only reason for its forbearance was its recognition that "it was not clear at the time that broadcasters could be punished for the kind of comment at issue here." Pet. App. 122a; see id. at 124a & n.206. In sum, the Commission's orders reflect a candid recognition that the Golden Globe Awards Order represented a change in policy-one that the Commission determined would better serve its stat utory obligation to protect children from exposure to indecent broadcasts during the times of the day they are most likely to be in the audience.

3. The Commission provided a reasonable explanation for the change in policy

Before the Golden Globe Awards Order, the Commis sion's indecency policy was largely to ignore context when an expletive was not repeated. In the Golden Globe Awards Order and in the order at issue here, the Commission concluded that such a categorical exception or safe harbor was not warranted. The Commission of fered three reasons for that conclusion, and its explana tion fully satisfies the deferential standard of the APA.

a. The "most important[]" reason for its change in policy, the Commission explained, was that "categori cally requiring repeated use of expletives in order to find material indecent is inconsistent with our general approach to indecency enforcement, which stresses the critical nature of context." Pet. App. 83a. The effect of the Commission's pre-Golden Globe Awards Order pol icy was to treat one contextual factor-"whether mate rial had been repeated"-as "decisive" regardless of whether other factors (such as the explicitness or shock ing nature of the material) contributed to the patent offensiveness of the broadcast. Id. at 83a. That result was "at odds" not only "with the Commission's overall enforcement policy," ibid., but also with the contextual inquiry mandated by this Court's decision in FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

In Pacifica, this Court upheld the Commission's au thority to regulate broadcast indecency under "a nui sance rationale under which context is all-important." 438 U.S. at 750; see id. at 742 (plurality opinion) (noting that "indecency is largely a function of context-it can not be adequately judged in the abstract"). As the Court explained, because a "nuisance may be merely a right thing in the wrong place,-like a pig in the parlor instead of the barnyard," the application of the inde cency standard to a particular broadcast "requires con sideration of a host of variables," including the "time of day," "the language * * * used," and "the composition of the audience." Id. at 750 (quoting Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926)). Consistent with Pacifica, the Commission has implemented a policy for enforcing federal indecency restrictions that looks to "the full context in which the material appear[s]." In dustry Guidance, 16 F.C.C.R. at 8002 ¶ 9. For example, "[e]xplicit language in the context of a bona fide news cast might not be patently offensive, while [in another context] sexual innuendo that persists and is sufficiently clear to make the sexual meaning inescapable might be." Id. at 8002-8003 ¶ 9 (footnote omitted).

As Judge Leval observed, the Commission's revised policy "has made the Commission more consistent rath er than less, because under the new rule, the same con text-based factors will apply to all circumstances." Pet. App. 54a. The revised policy is also more faithful to the text of the governing statute, which prohibits the broad cast of "any * * * indecent * * * language." 18 U.S.C. 1464 (emphasis added). "Read naturally, the word 'any' has an expansive meaning, that is, 'one or some indiscriminately of whatever kind.'" United States v. Gonzales, 520 U.S. 1, 5 (1997) (quoting Webster's Third New International Dictionary 97 (1976)). The word "any" does not lend itself to a safe-harbor policy in which some indecency is permitted if it is not repeated. Under the Commission's revised policy, the statute can be applied to the broadcast of any indecent language, regardless of whether particular words are repeated.

b. The Commission also explained its change in pol icy by noting this Court's rejection in Pacifica of the argument that one could fully protect oneself-or, more to the point, one's children-from indecent program ming "by turning off the broadcast upon hearing inde cent language." Pet. App. 84a. "To say that one may avoid further offense by turning off the radio when he hears indecent language," the Court stated, "is like say ing that the remedy for an assault is to run away after the first blow." Pacifica, 438 U.S. at 748-749. The Com mission likewise concluded that "granting an automatic exemption for 'isolated or fleeting' expletives unfairly forces viewers (including children) to take 'the first blow'" of vulgar expletives in circumstances in which their use is patently offensive. Pet. App. 84a. Particu larly given that some of the complaints that the Commis sion received with respect to the broadcasts at issue in this case concerned the impact of isolated expletives on children, it was appropriate for the Commission to take into account the full impact that a "first blow" may have in this context. See, e.g., J.A. 15 ("My son asked me Mommy what is f[]ing?"); J.A. 19 ("My son and I were watching the 2003 Billboard Music Awards the other night. * * * [M]y son asked me what f**king meant."); J.A. 20 ("It is hard enough to teach your children man ners and decent behavior without showing young adults on the TV using" expletives.).

c. Finally, the Commission observed that a blanket exemption for isolated expletives "would as a matter of logic permit broadcasters to air expletives at all hours of a day so long as they did so one at a time." Pet. App. 84a-85a. "For example," the Commission noted, "broad casters would be able to air any one of a number of of fensive sexual or excretory words, regardless of context, with impunity during the middle of the afternoon pro vided that they did not air more than one expletive in any program segment." Id. at 85a. "Such a result," the Commission rightly concluded, "would be inconsistent with our obligation to enforce the law responsibly." Ibid.4

B. The Court Of Appeals Erred In Substituting Its Judg ment For That Of The FCC

The court of appeals gave three reasons for rejecting the Commission's explanation of its change in policy. First, the court concluded that the Commission's objec tive of restricting the broadcast of nonrepeated vulgar expletives was inconsistent with its actual policy, which takes account of context in determining whether the use of those expletives is patently offensive. Pet. App. 25a- 28a. Second, the court disputed the Commission's con clusion that a broadcast containing the F-Word could be indecent even when the word is not used literally to de scribe sexual activity. Id. at 29a-30a. And third, the court disputed the factual underpinnings for the agency's policy. Id. at 30a, 32a-33a.

None of those reasons withstands scrutiny. Instead, all three rest on a failure to appreciate the limited scope of review under the APA in reviewing agency policy de terminations such as this. In addition, they have little to do with the Commission's change of policy on isolated expletives, but instead appear to reflect hostility to the agency's longstanding treatment of indecency in gen eral. In that respect, the reasoning of the court of ap peals is incompatible with this Court's decision in Paci fica. The court of appeals may consider respondents' constitutional challenges to the Commission's order once it has cleared respondents' statutory objections, but the Commission's efforts to give effect to the reasoning of Pacifica provide no basis for second-guessing its deter mination under the APA.

1. The Commission's consideration of context in deter mining offensiveness does not undermine its conclu sion that an isolated expletive may be indecent

In its analysis of the FCC's change in policy, the court of appeals concentrated on the Commission's statement that granting an automatic exemption for a single utterance of an expletive "unfairly forces viewers (including children) to take 'the first blow.'" Pet. App. 84a. According to the court, "the 'first blow' theory" -which this Court itself credited in Pacifica, 438 U.S. at 748-749-"bears no rational connection to the Commis sion's actual policy regarding fleeting expletives" be cause "the Commission does not take the position that any occurrence of an expletive" is indecent. Pet. App. 26a.

Because it focused on the "first blow" concept, the court of appeals did not address the principal rationale behind the Commission's change in policy: the desire to make the implementation of the contextual approach to indecency determinations more consistent by no longer making one factor dispositive in a particular category of cases. The Commission's policy simply takes into ac count that some blows are likely to be more harmful to the audience (including children) than others, and even more to the point, that in some contexts a first blow can be sufficient. The "first blow" metaphor recognizes that in certain contexts even a single word can be so offen sive that it should be subject to regulation; that is why a one-free-expletive rule is incompatible with the proper application of a contextual analysis. As the Commission explained-but the court of appeals ignored-the "most important[]" reason for the Commission's decision here was the "inconsisten[cy]" between the contextual ap proach and a categorical rule requiring repetition of expletives. Pet. App. 83a.

The Commission's failure to "take the position that any occurrence of an expletive is indecent," Pet. App. 26a, is a necessary consequence of a meaningful contex tual analysis. Judge Leval was therefore correct when he observed that the court's criticism "is not properly directed against the change of standard" but instead against the entire contextual approach to indecency en forcement. Id. at 54a. For example, the court looked to the Commission's finding that the use of expletives in a broadcast of the film "Saving Private Ryan" did not make the broadcast indecent, and it inferred that the Commission must not be "concern[ed] with the public's mere exposure to this language on the airwaves." Id. at 27a-28a. But the expletives in "Saving Private Ryan" arose in a much different context and in any event were repeated. Accordingly, if the non-indecency finding with respect to the repeated expletives in "Saving Private Ryan" makes the Commission's indecency finding with respect to the Billboard Music Awards broadcasts irra tional, it would equally preclude an indecency finding with respect to any broadcast of repeated expletives, such as the Carlin monologue.

Contrary to the reasoning of the court of apeals, the FCC's contextual approach is appropriate because the context in which a word is used is relevant in determin ing whether the word is offensive. Judge Leval illus trated the point well when he observed that the judges of the court of appeals had used the F-Word at oral ar gument: "Had the case been on another subject, such usage would surely have seemed inappropriate. Because of the issues in this case, the word was central to the issues being discussed. It is not irrational to take con text into account to determine whether use of the word is indecent." Pet. App. 54a n.16. In other words, "con temporary community standards" recognize that a word that is appropriate in some contexts-such as an oral argument in an indecency case-may be "patently offen sive" in others-such as a prime-time awards show when children are in the viewing audience. Industry Guid ance, 16 F.C.C.R. at 8002 ¶ 8. Nothing in the APA pre vents the Commission from reaching-or enforcing- that common-sense conclusion.

Additionally, when offensive language is used in cer tain contexts-such as a news program-countervailing First Amendment interests may be at stake, making it appropriate for the Commission to "proceed with the utmost restraint." Pet. App. 127a. The court of appeals was therefore wrong to criticize the FCC for its decision to "excuse an expletive" that occurred during a "news interview." Id. at 26a (quoting id. at 128a). Agencies are not required to pursue their policies at all costs and in disregard of competing interests, nor are they prohib ited from recognizing that those interests may be greater in some contexts than in others. Id. at 54a-55a (Leval, J., dissenting) (FCC has properly "reconcile[d] conflicting values through standards which take account of context."); see FCC v. National Citizens Comm. for Broad., 436 U.S. 775, 809-811 (1978); cf. Chevron, 467 U.S. at 865-866. In the news context, there is a counter vailing interest in respecting "the editorial judgments of broadcast licensees" in presenting news programming, and the Commission properly took that interest into account. Pet. App. 126a-127a (quoting In re Branton, 6 F.C.C.R. 610, 610 (1991)).

This Court endorsed the Commission's contextual approach in Pacifica. In that case, the Court upheld the Commission's authority to regulate broadcast indecency precisely because "[t]he Commission's decision rested entirely on a nuisance rationale under which context is all-important." 438 U.S. at 750; see ibid. (indecency de termination "requires consideration of a host of vari ables"). As Justice Stevens explained, "the constitu tional protection accorded to a communication contain ing such patently offensive sexual and excretory lan guage need not be the same in every context." Id. at 747 (plurality opinion). Instead, "[i]t is a characteristic of speech such as this that both its capacity to offend, and its 'social value' * * * vary with the circumstances"; thus, "[w]ords that are commonplace in one setting are shocking in another." Ibid. "Because content of that character is not entitled to absolute constitutional pro tection under all circumstances," Justice Stevens wrote, "we must consider its context in order to determine whether the Commission's action was constitutionally permissible." Id. at 747-748; see id. at 742 ("indecency is largely a function of context" and "cannot be ade quately judged in the abstract"); id. at 761 (Powell, J., concurring) (agreeing that "on the facts of this case, the Commission's order did not violate respondent's First Amendment rights") (emphasis added). In short, the FCC's contextual analysis was crucial to this Court's endorsement of the Commission's determination in Pacifica.5

According to the court of appeals, a contextual ap proach to fleeting expletives bears "no rational connec tion" to the goal of protecting broadcast audiences from the "first blow." Pet. App. 26a. But the Commission's goal was not protecting audiences from a first blow simpliciter, but rather to protect them from indecency, which in some contexts could involve a single blow. Moreover, there is no inherent tension between a "first blow" theory and a consideration of context and, in ef fect, the potential impact of that blow. Indeed, it was this Court in Pacifica that first analogized the broadcast of indecent language to the "first blow" of an assault, 438 U.S. at 748-749, even as it recognized that the same language in a different context-e.g., "a two-way radio conversation between a cab driver and a dispatcher, or a telecast of an Elizabethan comedy," id. at 750-might not be legally indecent. Moreover, in the discussion of Paul Cohen's famous jacket, id. at 747 n.25, 749, Justice Stevens made clear that context could matter in evaluat ing a single use of an expletive. See id. at 750 n.29.

The supposed inconsistency identified by the court of appeals in this case was a necessary consequence of the Commission's application of the analysis embraced by this Court in Pacifica. The court of appeals may enter tain respondents' constitutional challenges to the Com mission's order once the court has properly resolved the statutory challenges to that order. But the Commis sion's effort to give effect to the rationale of Pacifica provides no basis for invalidating its determination un der the APA. Indeed, if anything, an agency's efforts to give effect to this Court's decisions should call for more, not less, deference to its judgments.

2. The Commission reasonably concluded that vulgar expletives need not be used in a literal sense to be indecent

The court of appeals also disagreed with the Commis sion's judgment that vulgar expletives can be indecent even when they are not used literally. According to the court, the "FCC's change in policy cannot be based on a categorical view that 'any use of [the F-Word] or a varia tion, in any context, inherently has a sexual connotation,' because * * * the Commission permits even numerous and deliberate uses of that word in certain contexts." Pet. App. 28a n.9 (quoting Golden Globe Awards Order, 19 F.C.C.R. at 4978 ¶ 8) (citation omitted). That state ment reflects a misunderstanding of the Commission's reasoning. The Commission's determination that the F- Word "has a sexual connotation even if the word is not used literally," id. at 74a, 118a, means only that the word falls within the subject-matter scope of the Com mission's indecency definition-in other words, that it satisfies the first part of the two-part indecency test. It does not represent a determination that the broadcast of that word is always patently offensive, satisfying the second part of the test. There is thus no inconsistency between the Commission's determination that the F- Word has an inescapably sexual connotation and its deci sions that have found some broadcasts of the word not indecent.

The court of appeals also believed that the Commis sion's conclusion that the F-Word always has a sexual connotation was "unsupported by any record evidence and contradicted by the evidence submitted by the Net works." Pet. App. 30a n.10. The court pointed to exam ples that, in its view, showed that the F-Word can be employed "in everyday conversation without any 'sexual or excretory' meaning," id. at 29a, including Bono's statement at the Golden Globe Awards and Vice Presi dent Cheney's use of the F-Word in a conversation with Senator Patrick Leahy, id. at 29a-30a. That observation is of limited relevance to this case, since it is undisputed that at least one of the expletives at issue was used in a literal sense. Id. at 71a.

More fundamentally, the court's criticism was misdi rected, because the Commission was well aware that the F-Word may be used "for emphasis or as an intensifier," Pet. App. 73a, or "as a metaphor to express hostility," id. at 120a, and that when it is employed in such con texts it "is not used literally," id. at 74a. The Commis sion did not conclude that every use of the F-Word is a literal sexual reference. Rather, it determined that "the word's power to insult and offend derives from its sexual meaning," id. at 118a, and that any use of the F-Word therefore "has a sexual connotation," ibid. (emphasis added); see id. at 74a n.39 (citing American Heritage College Dictionary 559 (4th ed. 2002)); id. at 74a n.40 (citing Robert F. Bloomquist, The F-Word: A Jurispru dential Taxonomy of American Morals (In a Nutshell), 40 Santa Clara L. Rev. 65, 98 (1999) ("all F-word usage has at least an implicit sexual meaning")). The court of appeals erred in overriding that determination.

As Judge Leval observed, "the Commission did not mean that every speaker who utters [the F-Word] in variably intends to communicate an offensive sexual meaning," but that "even when the speaker does not intend a sexual meaning, a substantial part of the com munity, and of the television audience, will understand the word as freighted with an offensive sexual connota tion." Pet. App. 58a. Of course, the force of that "offen sive sexual connotation" is precisely why the word is effective when used as an intensifier or an insult. See Steven Pinker, The Stuff of Thought: Language As a Window Into Human Nature 369 (2007) ("If you're an English speaker, you can't hear [words such as the F- Word] without calling to mind what they mean to an im plicit community of speakers, including the emotions that cling to them."); Timothy Jay, Why We Curse: A Neuro-Psycho-Social Theory of Speech 136 (2000) ("Curse words are different" from ordinary words "in that the connotative meaning dominates over the deno tative meaning."). And whatever subtle non-literal meanings the F-Word might have to an adult, a child impressed by the use of a new word and asking for an explanation of the word's meaning may be less im pressed with subtle distinctions between denotations and connotations or between literal and figurative uses.

Both the FCC and this Court have long recognized the inherent sexual meaning of the F-Word. For exam ple, the expletives in the Carlin monologue were mostly used in a non-literal sense-indeed, one of Carlin's prin cipal themes was that the F-Word "leads a double life," literal and non-literal, a theme he illustrated with nu merous examples of phrases employing the F-Word (and other expletives) non-literally. Pacifica, 438 U.S. at 754. Nevertheless, in determining that the broadcast of the monologue was indecent, the Commission made no effort to parse the transcript to identify specific lit eral uses of expletives or to give the non-literal uses a free pass. Instead, it concluded that, as a general mat ter, the F-Word and the S-Word "depict sexual and ex cretory activities and organs in a manner patently offen sive by contemporary community standards." WBAI, 56 F.C.C.2d at 99 ¶ 14. This Court treated the broadcast the same way. See Pacifica, 438 U.S. at 739 (noting that "[t]he Commission identified several words that re ferred to excretory or sexual activities or organs," but without distinguishing between the literal and non-lit eral uses of those words); id. at 745 (plurality opinion) (describing Carlin's monologue as "a broadcast of pa tently offensive words dealing with sex and excretion").

That is not to say that an expletive's literal or non- literal use is not part of the relevant context in deter mining whether the use of an expletive is patently offen sive. Once again, the court of appeals appears to have taken one strand of the Commission's reasoning and treated it as if it were somehow an end in itself, when in reality the Commission's goal is a context-specific in quiry that does not exclude potentially patently offen sive remarks based on a per se rule. Moreover, like its criticisms of the FCC's consideration of context, the court of appeals' statements about non-literal uses of expletives have little to do with the Commission's change of policy with regard to isolated expletives. In stead, under the court's reasoning, the Commission would lack authority to regulate any non-literal uses of offensive sexual or excretory terms, no matter how many times they are deliberately repeated and no mat ter what time of day the broadcast takes place. That counter-intuitive result is inconsistent with Pacifica and the Commission's statutory responsibilities to regulate indecency, and nothing in the APA requires the Com mission to adopt it.

3. The court of appeals erred in second-guessing the Commission's judgment that a change in its inde cency enforcement policy was appropriate

Finally, the court of appeals concluded that the Com mission's revised policy was unnecessary. Seizing upon the Commission's observation that a blanket exemption for isolated expletives "would as a matter of logic permit broadcasters to air expletives at all hours of a day so long as they did so one at a time," Pet. App. 84a-85a, the court opined that because "broadcasters have never bar raged the airwaves with expletives even prior to Golden Globes," id. at 30a, the suggestion that they might do so was "both unsupported by any evidence and directly contradicted by prior experience," id. at 30a n.11. The court also objected that the record "is devoid of any evi dence that suggests a fleeting expletive is harmful, let alone establishes that this harm is serious enough to warrant government regulation." Id. at 32a. Neither rationale represents a proper basis for setting aside the agency's predictive judgment on such matters.

a. Retaining an automatic exception to the indecency prohibition for nonrepeated expletives would, at least as a logical matter, undeniably allow broadcasters to air "one expletive in any program segment." Pet. App. 85a. Regardless of whether, or to what extent, the regulated community might exercise self-restraint and not avail itself of a one-free-expletive rule, it was appropriate for the Commission to consider where the logic of the broad casters' argument would extend, and to conclude that the result "would be inconsistent with [its] obligation to enforce the law responsibly." Ibid. Section 1464 broadly prohibits the broadcast of "any" indecent lan guage, and the Commission could reasonably conclude that its prior policy of requiring repetition where exple tives were involved "failed to implement properly the statute." Rust, 500 U.S. at 187.

Moreover, it was well within the Commission's dis cretion to make a predictive judgment about the conse quences of such a rule on a going-forward basis. There was ample evidence to support the proposition that the broadcast of vulgar expletives would increase in the ab sence of a change in policy. In the Golden Globe Awards Order, the Commission cited a study that found that "of fensive" language had increased significantly on broad cast television between 1990 and 2001. 19 F.C.C.R. at 4979 ¶ 9 n.26; see Barbara K. Kaye and Barry S. Sapolsky, Watch Your Mouth! An Analysis of Profan ity Uttered by Children on Prime-Time Television, 7 J. Mass Commc'n & Soc'y 429, 441 (2004) (finding that "of fensive" language was used 98 times on major broadcast networks between 8 and 9 p.m. in 1990, but 216 times on the same networks during the same hour in 2001). And the House Committee considering the Broadcast De cency Enforcement Act of 2005, Pub. L. No. 109-235, 120 Stat. 491, noted another study that showed that offen sive "language increased overall during every timeslot between 1998 and 2002" and that "[f]oul language during the 'family hour' increased by 94.8 percent between 1998 and 2002 and by 109.1 percent during the 9 p.m. time slot." H.R. Rep. No. 5, 109th Cong., 1st Sess. 2 (2005). The Commission could reasonably anticipate that the trend would continue in the absence of any regulatory change. See Pet. App. 56a-57a (Leval, J., dissenting).6

As this Court has explained, when an agency makes judgments of a "predictive nature," "complete factual support in the record for the Commission's judgment or prediction is not possible or required"; instead, "a fore cast of the direction in which future public interest lies necessarily involves deductions based on the expert knowledge of the agency." National Citizens Comm., 436 U.S. at 813-814 (quoting FPC v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 29 (1961)); see Public Citizen, Inc. v. NHTSA, 374 F.3d 1251, 1260-1261 (D.C. Cir. 2004) ("Predictions regarding the actions of regu lated entities are precisely the type of policy judgments that courts routinely and quite correctly leave to admin istrative agencies.") (quoting Public Utils. Comm'n of the State of Cal. v. FERC, 24 F.3d 275, 281 (D.C. Cir. 1994)). The court of appeals erred in overriding the agency's predictive judgment here.

b. The court of appeals also refused to uphold the Commission's change in policy because the Commission had failed to produce "any evidence that suggests a fleeting expletive is harmful, let alone establishes that this harm is serious enough to warrant government reg ulation." Pet. App. 32a. But 18 U.S.C. 1464, which pro hibits the broadcast of "any obscene, indecent, or pro fane language," does not require the Commission to compile evidence showing that the language to which it applies is otherwise harmful; harm has already been presumed by Congress. The Commission's duty is to enforce the statute enacted by Congress, not to conduct its own investigation of whether the statute is necessary or advisable as a policy matter. When Congress's intent is clear, that is the end of the matter.

That the Commission previously followed a different policy does not suggest that the agency had determined that the broadcast of a single expletive was harmless; instead, the pre-Golden Globe Awards Order decisions embodied a policy that a single expletive did not warrant the exercise of the Commission's enforcement authority. See Industry Guidance, 16 F.C.C.R. at 8008-8009 ¶ 18. The decision below resulted from the Commission's deci sion to recalibrate that policy to more "responsibly" en force federal prohibitions against indecent broadcasting. Pet. App. 85a. The Commission's earlier exercise of its discretion to forbear from enforcing Section 1464 in single-expletive cases does not disable it from enforcing the statute now. Reevaluating the threat posed by cer tain regulated conduct is precisely the sort of thing that responsible agencies do in carrying out their statutory mandate, and nothing in the APA stands in the way of such diligence.

More importantly, this Court has never insisted that an agency must amass evidence of harm to minors be fore it may enforce regulations designed to protect their well-being. In Pacifica, for example, the Court upheld the Commission's indecency determination even though there was no evidence of any harm caused by the Carlin monologue. Instead, the Court found a sufficient basis for regulation in the commonsense observations that "broadcasting is uniquely accessible to children, even those too young to read," and that written messages "incomprehensible to a first grader," when broadcast, can "enlarge[] a child's vocabulary in an instant." Paci fica, 438 U.S. at 749; see J.A. 15 (viewer complaint re garding the 2003 Billboard Music Awards) ("Mommy what is f[]ing?"). The Commission was not required to conduct further proceedings to arrive at the inescapable conclusion that such language presents a threat to chil dren in the audience.

Likewise, in Ginsberg v. New York, 390 U.S. 629 (1968), the Court upheld a statute prohibiting the sale of material obscene as to minors, even while it recognized that the link between exposure to obscenity and the "ethical and moral development of our youth" was not "an accepted scientific fact." Id. at 641. As the District of Columbia Circuit has observed, "Congress does not need the testimony of psychiatrists and social scientists in order to take note of the coarsening of impressionable minds that can result from a persistent exposure to sex ually explicit material." ACT III, 58 F.3d at 662. To the contrary, "the Supreme Court has never suggested that a scientific demonstration of psychological harm is re quired in order to establish the constitutionality of mea sures protecting minors from exposure to indecent speech." Id. at 661-662. Under this Court's precedents, the court of appeals had no basis for demanding that the Commission identify further "evidence" of harm caused by the expletives at issue.

C. This Court Should Remand To Allow The Court Of Ap peals To Consider Respondents' Other Challenges To The FCC's Order

Before the court of appeals, respondents presented several additional challenges to the FCC's order, argu ing among other things that Section 1464's indecency prohibition violates the First Amendment. Pet. App. 18a. Because the court of appeals did not rule on those challenges, this Court should remand to allow the court of appeals to consider them in the first instance. See Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005) (declin ing to reach issues that "were not addressed by the Court of Appeals," because "we are a court of review, not of first view"); see also Fox Br. in Opp. 19 ("[I]f this Court were to * * * reverse the Second Circuit's ad ministrative law holding, the Court would still have to remand the case to the Second Circuit to permit it to consider Fox's scienter and constitutional arguments.").

To be sure, the panel majority made a variety of "ob servations" about the constitutional issues raised by respondents. Pet. App. 35a. It specifically "refrain[ed] from deciding" those issues, however, and its comments were concededly "dicta." Ibid.; id. at 35a n.12. It is well settled that this Court reviews "judgments, not state ments in opinions." California v. Rooney, 483 U.S. 307, 311 (1987) (per curiam) (quoting Black v. Cutter Labs., 351 U.S. 292, 297 (1956)). "That admonition has special force when the statements raise constitutional ques tions," because it is the Court's "settled practice to avoid the unnecessary decision of such issues." Pacifica, 438 U.S. at 734; see Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring).

Consideration of respondents' constitutional argu ments at this stage would be especially inappropriate in light of the rule that a "cross-petition is required * * * when the respondent seeks to alter the judgment be low." Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355, 364 (1994). In this case, the judgment below vacated the Commission's order and remanded to the Commission "for further proceedings in accordance with" the court's opinion, Pet. App. 144a-that is, for further proceedings aimed at "provid[ing] a reasoned analysis" for the Commission's policy, id. at 34a. But if respondents were to prevail on their constitutional chal lenges, they would be entitled to a different judgment that would provide them with broader relief. Having elected not to file a cross-petition, respondents are pre cluded from raising their constitutional challenges in this Court. See Board of Trs. of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 485 (1989).

 

 

 

 

 

 

 

 

 

 

 

 

 

CONCLUSION

The judgment of the court of appeals should be re versed, and the case should be remanded for further proceedings.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
GREGORY G. KATSAS
Acting Assistant Attorney
General
GREGORY G. GARRE
Deputy Solicitor General
ERIC D. MILLER
Assistant to the Solicitor
General
THOMAS M. BONDY
ANNE MURPHY
Attorneys

MATTHEW B. BERRY
General Counsel
JOSEPH R. PALMORE
Deputy General Counsel
JACOB M. LEWIS
Associate General Counsel
NANDAN M. JOSHI
Counsel
Federal Communications
Commission

 

 

JUNE 2008

1 Thus, the Commission found that certain broadcasts of the Howard Stern show would have been actionably indecent under its indecency standards as clarified because they involved "not merely an occasional off-color reference," but an "explicit" discussion of "matters sexual and excretory, in a pandering and titillating fashion," even though they did not employ "the specific words used in the Pacifica case." In re Infinity Broad. Corp. of Penn., 2 F.C.C.R. 2705, 2706 ¶¶ 10, 11 (1987).

2 In a later portion of the same decision, the District of Columbia Cir cuit remanded the Commission's tentative determination that indecent material could be broadcast only after midnight, finding that the Com mission had "failed to consider fairly and fully what time lines should be drawn." ACT I, 852 F.2d at 1341. Thereafter, the court invalidated a congressional directive to enforce Section 1464 "on a 24 hour per day basis." Action for Children's Television v. FCC, 932 F.2d 1504, 1507 (D.C. Cir. 1991) (ACT II) (emphasis omitted), cert. denied, 503 U.S. 913, 914 (1992). It later upheld a 10 p.m. to 6 a.m. statutory safe harbor for indecent broadcasts. See ACT III, 58 F.3d at 656; Public Telecommuni cations Act of 1992, Pub. L. No. 102-356, § 16a, 106 Stat. 954. The FCC's current regulations provide that "[n]o licensee of a radio or television broadcast station shall broadcast on any day between 6 a.m. and 10 p.m. any material which is indecent." 47 C.F.R. 73.3999(b).

3 The FCC's Enforcement Bureau had initially ruled that the broad cast was not indecent because Bono used the F-Word "as an adjective or expletive to emphasize an exclamation," and because the remarks were "fleeting and isolated." See In re Complaints Against Various Broad. Licensees Regarding Their Airing of the "Golden Globe Awards" Program, 18 F.C.C.R. 19,859, 19,861 ¶¶ 5-6 (2003). The Golden Globe Awards Order reversed that staff decision.

4 The Commission's revised policy is further supported by the 2006 enactment of the Broadcast Decency Enforcement Act of 2005 (BDEA), Pub. L. No. 109-235, 120 Stat. 491. The BDEA substantially increased the maximum forfeitures that may be levied against licensees that broadcast "obscene, indecent, or profane language." § 2, 120 Stat. 491 (to be codified at 47 U.S.C. 503(b)(2)(C)(ii)). The BDEA was enacted after the Commission released the Golden Globe Awards Order, yet Congress expressed no disagreement with the FCC's revised policy. To the contrary, the House Report cited Bono's remark during the Golden Globe Awards and Nicole Richie's remarks during the 2003 Billboard Awards as evidence of the need for more rigorous enforce ment of the broadcast-indecency prohibition. H.R. Rep. No. 5, 109th Cong., 1st Sess. 2 (2005). That Congress had these broadcasts in mind when it decided to increase the FCC's forfeiture authority provides additional evidence that the Commission's revised policy falls within its authority under Section 1464. Cf. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 143 (2000).

5 NBC errs when it asserts (Br. in Opp. 25) that the Pacifica Court did not consider whether context was relevant to indecency determina tions, because the case involved only "concededly indecent speech." In fact, one of the questions before the Court was whether the broadcast of Carlin's monologue was indecent. See Pacifica, 438 U.S. at 738-739 ("The only other statutory question presented by this case is whether the afternoon broadcast of the 'Filthy Words' monologue was indecent within the meaning of § 1464."); id. at 739 (noting "Pacifica's claim that the broadcast was not indecent within the meaning of the statute"); id. at 741 (finding "no basis for disagreeing with the Commission's conclu sion that indecent language was used in [the] broadcast" of Carlin's monologue).

6 The Commission had experienced a similar phenomenon before 1987, when its enforcement policy was that "no action was taken unless [the broadcast] involved the repeated use, for shock value, of words similar or identical to those satirized in the Carlin 'Filthy Words' mono logue." Infinity Reconsideration Order, 3 F.C.C.R. at 930 ¶ 4. As a result of that policy, broadcasters believed that "only concentrated and repeated use of the specific offensive words at issue in the Pacifica case" would be indecent, and they aired patently offensive program ming that simply avoided the use of those words. See, e.g., In re Infi nity Broad. Corp. of Penn., 2 F.C.C.R. 2705, 2705 ¶ 7 (1987). The Com mission ultimately disavowed the policy as "unduly narrow as a matter of law and inconsistent with [its] enforcement responsibilities under Section 1464." Infinity Reconsideration Order, 3 F.C.C.R. at 930 ¶ 5.