FCC Indecency FCC Indecency Litigation UpdateLitigation Update

Robert Corn-RevereDavis Wright Tremaine LLP

First Amendment Lawyers Association

February 2007

FCC Enforcement Actions FCC Enforcement Actions in 2006in 2006

““Without a Trace.”Without a Trace.” FCC proposed fine of $3.6 million FCC proposed fine of $3.6 million for broadcasts in the Central and Mountain time zones of for broadcasts in the Central and Mountain time zones of CBS prime time show. Reduced to $3.35 million.CBS prime time show. Reduced to $3.35 million.

Omnibus OrderOmnibus Order. FCC proposed fines totalling $355,000 . FCC proposed fines totalling $355,000 for six programs; found additional violations (but for six programs; found additional violations (but proposed no fines) for four other programs; dismissed proposed no fines) for four other programs; dismissed complaints against various other programs.complaints against various other programs.

Super Bowl ForfeitureSuper Bowl Forfeiture. FCC upheld fine of $550,000 for . FCC upheld fine of $550,000 for CBS broadcast of 2004 Super Bowl.CBS broadcast of 2004 Super Bowl.

Circuit Court LitigationCircuit Court Litigation

Fox Television Stations, Inc. v. Fox Television Stations, Inc. v. FCCFCC, No. 06-1760 (2d Cir.) , No. 06-1760 (2d Cir.) (challenge to Section III.B. of (challenge to Section III.B. of Omnibus OrderOmnibus Order).).

CBS Corporation v. FCCCBS Corporation v. FCC, No. , No. 06-3575 (3d Cir.) (challenge to 06-3575 (3d Cir.) (challenge to Super Bowl forfieture).Super Bowl forfieture).

Without a TraceWithout a Trace Notice of Apparent Liability Notice of Apparent Liability

FCC proposed fine of $3.6 million for FCC proposed fine of $3.6 million for broadcasts in the Central and broadcasts in the Central and Mountain time zones. Reduced to Mountain time zones. Reduced to $3.35 million.$3.35 million.

Complaint focused on what PTC called Complaint focused on what PTC called a “teen orgy.” No nudity involved.a “teen orgy.” No nudity involved.

Episode was based on a PBS Episode was based on a PBS documentary. documentary.

Opposition to NAL filed April 14, Opposition to NAL filed April 14, 2006. No action yet by FCC.2006. No action yet by FCC.

When is talking about teen sex OK?When is talking about teen sex OK?

Discussion on episode of Oprah was “highly Discussion on episode of Oprah was “highly graphic and explicit,” as well as “not brief,” graphic and explicit,” as well as “not brief,” but these factors were outweighed by the but these factors were outweighed by the fact that it was not “pandering” or fact that it was not “pandering” or “shocking” in context. “shocking” in context.

Program focused on the importance of Program focused on the importance of “serious, potentially harmful behaviors of “serious, potentially harmful behaviors of teens” and “[i]t would have been difficult to teens” and “[i]t would have been difficult to educate parents regarding teenagers’ educate parents regarding teenagers’ sexual activities without at least briefly sexual activities without at least briefly describing those activities.” describing those activities.”

And when is it not?And when is it not? According to the FCC, the 60 seconds or so that were According to the FCC, the 60 seconds or so that were

the subject of the the subject of the Without a TraceWithout a Trace complaint went complaint went “well beyond what the story line could reasonably be “well beyond what the story line could reasonably be said to require.” said to require.”

Godfathers and SonsGodfathers and Sons: “[W]e disagree that the use of : “[W]e disagree that the use of such language was necessary to express any such language was necessary to express any particular viewpoint in this case.” It was not particular viewpoint in this case.” It was not “demonstrably essential to the nature of an artistic or “demonstrably essential to the nature of an artistic or educational work or essential to informing viewers on educational work or essential to informing viewers on a matter of public importance.”a matter of public importance.”

Omnibus OrderOmnibus Order Section III.B. Section III.B. No Forfeiture Proposed No Forfeiture Proposed

““The 2002 Billboard Music Awards” (December 9, 2002) The 2002 Billboard Music Awards” (December 9, 2002) (2002 Billboard Music Award show on FOX in which Cher (2002 Billboard Music Award show on FOX in which Cher said “fuck ‘em”).said “fuck ‘em”).

““The 2003 Billboard Music Awards” (December 10, 2003) The 2003 Billboard Music Awards” (December 10, 2003) (2003 Billboard Music Award Show on FOX in which Nicole (2003 Billboard Music Award Show on FOX in which Nicole Richie said “shit” and “fuck”).Richie said “shit” and “fuck”).

““NYPD Blue” (FCC held that “dick” and “dickhead” were NYPD Blue” (FCC held that “dick” and “dickhead” were OK, but that “bullshit” is indecent and profane based on OK, but that “bullshit” is indecent and profane based on complaints against 9 episodes broadcast between January 14 complaints against 9 episodes broadcast between January 14 and May 6, 2003).and May 6, 2003).

““The Early Show” (December 13, 2004) (FCC held that guest The Early Show” (December 13, 2004) (FCC held that guest calling another “Survivor” contestant a “bullshitter” during a calling another “Survivor” contestant a “bullshitter” during a news interview was indecent and profane).news interview was indecent and profane).

FCC Remand ProceedingFCC Remand Proceeding Over the network’s objections, FCC Over the network’s objections, FCC

sought remand.sought remand.

Court granted motion, with Court granted motion, with automatic reversion in 60 days, automatic reversion in 60 days, followed by expedited briefing and followed by expedited briefing and argument schedule.argument schedule.

FCC sent Letters of Inquiry to FCC sent Letters of Inquiry to networks, and sought general networks, and sought general comments by Public Notice.comments by Public Notice.

Decision on RemandDecision on Remand

FCC reaffirmed indecency/profanity FCC reaffirmed indecency/profanity findings regarding “Billboard Music findings regarding “Billboard Music Awards.”Awards.”

FCC dismissed complaints against FCC dismissed complaints against “NYPD Blue,” because they all “NYPD Blue,” because they all originated from the same individual in originated from the same individual in Alexandria, Virginia.Alexandria, Virginia.

FCC dismissed complaint against “The FCC dismissed complaint against “The Early Show,” deferring to “CBS’s Early Show,” deferring to “CBS’s plausible characterization of its own plausible characterization of its own programming” as news.programming” as news.

That was then . . .That was then . . .From the From the Omnibus OrderOmnibus Order:: In what it called the “most important” part of its decision, the FCC concluded that “use of the ‘S-Word,’ partcularly during a morning news intervew, is shocking and gratutous.” It characterized the use of the word “bullshitter” in this context as “one of the most offensive words in the English language, the broadcast of which is likely to shock the viewer and disturb the peace and quiet of the home.”

This is now . . .This is now . . .According to the According to the Remand OrderRemand Order : :The Omnibus Order “did not give appropriate weight to the nature of the programming at issue (i.e., news programmng).” FCC will “defer to” the judgment of CBS that the intervew was part of a bona fide news program. The Commssion now concludes that “the complained-of material is neither actionably indecent nor profane.”

A News A News Exception?Exception?

No. “To be sure, No. “To be sure, there is no outright there is no outright news exemption news exemption from our indecency from our indecency rules.”rules.”

Confused yet?Confused yet? The FCC has “failed to develop The FCC has “failed to develop

a consistent and coherent a consistent and coherent indecency enforcement policy.”indecency enforcement policy.”

Commissioner Jonathan AdelsteinConcurring in part, dissenting in part.

Dismissing complaint against “The Early Show” reflects “the arbitrary, subjective and inconsistent nature of the Commission’s decision-making.”“It stretches the bounds to argue that this is legitimate news or public affairs programming.”

Oral Argument inOral Argument in Fox Television Fox Television Stations, Inc. v. FCCStations, Inc. v. FCC, No. 06-1760 , No. 06-1760

(2d Cir.)(2d Cir.)

Expedited hearing, December 20, Expedited hearing, December 20, 2006.2006.

Panel: Rosemary Pooler, Pierre Leval, Panel: Rosemary Pooler, Pierre Leval, and Peter Hall.and Peter Hall.

Judge Robert Sack recused.Judge Robert Sack recused. Argument transmited live on C-SPAN Argument transmited live on C-SPAN

(including C-SPAN Radio).(including C-SPAN Radio).

2004 Super Bowl 2004 Super Bowl ForfeitureForfeiture

FCC reaffirmed fine of $550,000 against CBS FCC reaffirmed fine of $550,000 against CBS O&O stations and issued a forfeiture order.O&O stations and issued a forfeiture order.

Commission held that it did not matter whether Commission held that it did not matter whether CBS intended to violate the rules; the broadcast CBS intended to violate the rules; the broadcast ““appearedappeared to be pandering.” to be pandering.”

CBS is responsible for Janet Jackson & Justin CBS is responsible for Janet Jackson & Justin Timberlake’s actions under Timberlake’s actions under respondeat respondeat superiorsuperior..

CBS gave Jackson and Timberlake control over CBS gave Jackson and Timberlake control over programming – a nondelegable duty of a programming – a nondelegable duty of a licensee.licensee.

CBS Corporation v. FCCCBS Corporation v. FCC, No. 06-, No. 06-3575 (3d Cir.)3575 (3d Cir.)

Briefing concluded on January 8, Briefing concluded on January 8, 2007.2007.

No argument date yet scheduled.No argument date yet scheduled.

Outlook for 2007?Outlook for 2007?