An agency may not depart from a prior policy sub silentio or simply disregard rules that are still on the books. And of course the agency must show that there are good reasons for the new policy. But it need not demonstrate to a court's satisfaction that the reasons for the new policy are better than the reasons for the old one; it 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.
In 2004, Fox was fined for the use of fleeting expletives during its broadcast of the Billboard Music Awards in 2002 and 2003. The FCC claimed that it had a pressing need to protect young children from obscenity in the easily accessible medium of broadcasting—a position the FCC has maintained since the 1974 decision in FCC v. Pacifica (although it has not been enforced in a standard way). Fox claimed that they were not given fair notice of the FCC’s new regulations and that the current framework is too vague and arbitrary.
Was FCC's reasoning for finding that fleeting expletives could be actionably indecent under 18 U.S.C.S. § 1464 and the Communications Act of 1934 inadequate under the Administrative Procedure Act?
The Supreme Court ruled in a 5-4 decision on April 28, 2009 that the Federal Communications Commission had not acted arbitrarily when it changed a long-standing policy and implemented a new ban on even "fleeting expletives" from the airwaves. The Court explicitly declined to decide whether the new rule is constitutional, and sent that issue back to the lower courts for their review. Justice Antonin Scalia, in the majority opinion, wrote: "The FCC’s new policy and its order finding the broadcasts at issue actionably indecent were neither arbitrary nor capricious."