Master Supreme Court held that an agency need not satisfy a heightened standard to change policy; it must acknowledge the change and give a reasoned explanation, considering reliance interests when present. with this comprehensive case brief.
FCC v. Fox Television Stations, Inc. is a cornerstone administrative law case on how courts review an agency’s change in policy under the Administrative Procedure Act’s arbitrary-and-capricious standard. The Federal Communications Commission had long treated “fleeting expletives” on live television as generally nonactionable. In the wake of high-profile incidents, the agency reversed course, announcing that even a single nonliteral use of vulgarities could be deemed indecent. When broadcasters challenged that shift as inadequately explained, the Second Circuit vacated the FCC’s orders. The Supreme Court reversed, clarifying the standard governing agency reversals.
The Court held that no special or heightened scrutiny applies simply because an agency changes its mind. Rather, the APA requires a “reasoned explanation” that acknowledges the change and provides good reasons for it. The Court also emphasized that where a prior policy has engendered serious reliance interests or where the new policy rests on contradictory factual determinations, the agency must provide a more detailed justification. Fox thus sets the modern template for evaluating agency policy flips and is repeatedly cited in later cases involving reliance interests and policy reversals.
556 U.S. 502 (2009)
For decades after FCC v. Pacifica Foundation (1978), the FCC pursued broadcast indecency primarily against repeated or deliberate uses of vulgarities, generally declining to sanction single, isolated uses of expletives during live broadcasts. In 2003–2004, after several high-profile incidents, the FCC issued its “Golden Globes Order,” announcing a change: the Commission would treat even a single nonliteral use of the F-word or S-word as potentially indecent, given the words’ inherent offensiveness and the risk of harm to children. In 2006, the FCC applied this approach in orders addressing Fox’s broadcasts of the Billboard Music Awards, during which Cher (2002) and Nicole Richie (2003) used the F-word and S-word on live television. The FCC concluded the broadcasts were indecent and profane but, recognizing the policy shift, did not impose forfeitures for those particular incidents. Fox petitioned for review in the Second Circuit, which vacated the orders as arbitrary and capricious, reasoning that the FCC had not adequately justified its policy reversal. The Supreme Court granted certiorari.
Under the APA, must an agency provide a heightened or more rigorous justification when it changes a longstanding policy, and did the FCC provide an adequate reasoned explanation for its decision to treat “fleeting expletives” as actionable indecency?
Under APA § 706(2)(A), a court shall set aside agency action that is arbitrary or capricious. An agency changing policy must (1) acknowledge it is changing position, and (2) show that there are good reasons for the new policy. The APA does not impose a heightened standard merely because a policy has changed; the agency need not show that the new policy is better than the old or that the prior policy was unlawful. However, where the new policy rests on factual findings that contradict those underlying the prior policy, or where the prior policy has engendered serious reliance interests, the agency must provide a more detailed justification that reasonably considers those interests and explains the departure.
No heightened standard applies to agency policy changes. The FCC acknowledged its change in approach and offered a reasoned explanation for treating fleeting expletives as potentially indecent. The Second Circuit erred in requiring more. The Court reversed and remanded for further proceedings.
The majority (Justice Scalia) held that nothing in the APA or in the Court’s precedents imposes a more searching form of arbitrary-and-capricious review simply because an agency alters course. Agencies are entitled to adapt their policies to changing circumstances, priorities, and judgments. What the APA requires is reasoned decisionmaking: the agency must recognize it is changing policy and articulate good reasons for the new course. Applying that standard, the Court found the FCC satisfied its obligations. The Commission explained that even isolated expletives can be highly offensive, that their broadcast could harm children, that a per se exemption for fleeting uses undermined enforcement and deterrence, and that modern broadcast technology (e.g., time delays) allows networks to avoid airing such language live. Those were rational, policy-based reasons within the agency’s statutory mandate to regulate broadcast indecency. The Court rejected the notion that the FCC had to present empirical proof of harm or demonstrate that the new policy was superior to the old one. Nor did the FCC need to prove the prior policy was unlawful. At the same time, the Court articulated guardrails for policy reversals. If a new policy rests upon factual findings contrary to those underlying the previous policy, or if the earlier policy engendered serious reliance interests, the agency must provide a more detailed explanation for the change. Although broadcasters claimed reliance on the prior tolerance for fleeting expletives, the majority concluded the FCC adequately accounted for such concerns, particularly given longstanding indecency restrictions and the availability of delay mechanisms. Concurring opinions emphasized the importance of considering reliance interests, while dissents would have required a more robust justification for the policy shift. The Court left First Amendment and vagueness arguments for later proceedings, which culminated in a separate 2012 decision resolving due process concerns.
Fox established the modern framework for reviewing agency policy reversals: no heightened scrutiny, but a clear duty to acknowledge the change and provide a reasoned explanation, with special attention to contradictory factual findings and reliance interests. The decision underpins later cases—such as Encino Motorcars, LLC v. Navarro (2016) and DHS v. Regents of the University of California (2020)—that fault agencies for failing to consider reliance interests or for offering inadequate explanations when reversing policy. For students, Fox is essential for understanding arbitrary-and-capricious review, the limits of judicial scrutiny of agency policymaking, and how administrative law structures agency flexibility and accountability.
Fox I (556 U.S. 502 (2009)) addressed the APA question: whether the FCC adequately explained its policy change regarding fleeting expletives. The Court held that no heightened standard applies to policy reversals and found the FCC’s explanation sufficient. Fox II (567 U.S. 239 (2012)) resolved constitutional due process issues, holding the FCC’s indecency policy vague as applied to certain broadcasts because the networks lacked fair notice. Fox II did not decide the First Amendment question.
No. Fox rejects any requirement that an agency demonstrate the new policy is superior or that the old one was unlawful. The agency must acknowledge the change and provide a reasoned explanation supported by the record, including a more detailed justification if it contradicts prior factual findings or upsets serious reliance interests.
If a prior policy created serious reliance interests—where regulated parties structured their behavior, investments, or compliance systems based on that policy—the agency must address those interests and provide a more detailed justification for departing from the prior approach. Failure to grapple with reliance can render a change arbitrary and capricious, as emphasized in later cases like Encino Motorcars and Regents.
Not directly. The case was not about the FCC’s interpretation of ambiguous statutory text within Chevron’s framework, but about whether the agency’s policy change satisfied arbitrary-and-capricious review under the APA. The Court assessed the adequacy of the FCC’s explanation rather than deferring to a statutory construction.
The FCC pointed to the inherent offensiveness of certain expletives, concerns about harm to children, enforcement difficulties posed by a categorical exemption for isolated utterances, and the availability of delay technology to prevent live broadcasts of such language. The Court found these policy reasons sufficient under the deferential APA standard.
No. Fox I did not reach the First Amendment issue, focusing instead on the APA. In Fox II, the Court resolved the matter on due process vagueness grounds, again avoiding a broad First Amendment ruling about indecency regulation of broadcast television.
FCC v. Fox Television Stations, Inc. recalibrates how courts evaluate agency policy reversals. It confirms that agencies may change course without clearing an artificially heightened hurdle, so long as they acknowledge the shift and offer a reasoned explanation. At the same time, Fox embeds safeguards that promote rational administration by requiring agencies to grapple with contradictory prior findings and with reliance interests.
For lawyers and students, Fox is a lodestar in administrative law. It guides how to build, defend, and challenge agency reversals, and it frames judicial review across diverse regulatory domains—labor, immigration, environmental, and more—where policy changes are frequent and consequential.