What’s up with the FCC? Robert Corn-Revere Davis Wright Tremaine LLP

2004 Super Bowl Forfeiture FCC reaffirmed fine of $550,000 against CBS O&O stations and issued a forfeiture order. FCC reaffirmed fine of $550,000 against CBS O&O stations and issued a forfeiture order. Commission held that it did not matter whether CBS intended to violate the rules; the broadcast “appeared to be pandering.” Commission held that it did not matter whether CBS intended to violate the rules; the broadcast “appeared to be pandering.” CBS is responsible for Janet Jackson & Justin Timberlake’s actions under respondeat superior. CBS is responsible for Janet Jackson & Justin Timberlake’s actions under respondeat superior.

Without a Trace Notice of Apparent Liability FCC proposed fine of $3.6 million for broadcasts in the Central and Mountain time zones. Reduced to $3.25 million. FCC proposed fine of $3.6 million for broadcasts in the Central and Mountain time zones. Reduced to $3.25 million. Complaint focused on what it called a “teen orgy.” No nudity involved. Complaint focused on what it called a “teen orgy.” No nudity involved. FCC concluded the scene “goes well beyond what the story line could reasonably be said to require.” FCC concluded the scene “goes well beyond what the story line could reasonably be said to require.”

Notices of Apparent Liability for Forfeiture “The Surreal Life 2” (February 8, 2004) ($27,500 forfeiture to WBDC Broadcasting for reality show with porn stars and pixilated breasts) “The Surreal Life 2” (February 8, 2004) ($27,500 forfeiture to WBDC Broadcasting for reality show with porn stars and pixilated breasts) “Con El Corazón En La Mano” (October 9, 2004) ($32,500 forfeiture to NBC Telemundo station KWHY-TV, Los Angeles, for rape scene in telenovela “Con El Corazon En La Mano”) “Con El Corazón En La Mano” (October 9, 2004) ($32,500 forfeiture to NBC Telemundo station KWHY-TV, Los Angeles, for rape scene in telenovela “Con El Corazon En La Mano”) “Fernando Hidalgo Show” (October 19, 2004) ($32,500 forfeiture to WJAN-TV-CA, Miami for interview with bare-breasted female guest) “Fernando Hidalgo Show” (October 19, 2004) ($32,500 forfeiture to WJAN-TV-CA, Miami for interview with bare-breasted female guest) “Video Musicales” (February 2-March 8, 2002) ($220,000 – reduced from $385,000 – to Aerco Broadcasting Corp. for music videos and a DVD promo on WSJU-TV, San Juan) “Video Musicales” (February 2-March 8, 2002) ($220,000 – reduced from $385,000 – to Aerco Broadcasting Corp. for music videos and a DVD promo on WSJU-TV, San Juan) “The Blues: Godfathers and Sons” (March 11, 2004) ($15,000 forfeiture to KCSM, San Mateo Community College for PBS documentary “The Blues: Godfathers and Sons”) “The Blues: Godfathers and Sons” (March 11, 2004) ($15,000 forfeiture to KCSM, San Mateo Community College for PBS documentary “The Blues: Godfathers and Sons”) “The Pursuit of D.B. Cooper” (March 15, 2003) ($27,500 forfeiture to KTVI, St. Louis, for broadcast of film “The Pursuit of D.B. Cooper”) “The Pursuit of D.B. Cooper” (March 15, 2003) ($27,500 forfeiture to KTVI, St. Louis, for broadcast of film “The Pursuit of D.B. Cooper”)

Indecent And/Or Profane Broadcasts But No Forfeiture Proposed “The 2002 Billboard Music Awards” (December 9, 2002) (2002 Billboard Music Award show on FOX in which Cher said “fuck ‘em”) “The 2002 Billboard Music Awards” (December 9, 2002) (2002 Billboard Music Award show on FOX in which Cher said “fuck ‘em”) “The 2003 Billboard Music Awards” (December 10, 2003) (2003 Billboard Music Award Show on FOX in which Nicole Richie said “shit” and “fuck”) “The 2003 Billboard Music Awards” (December 10, 2003) (2003 Billboard Music Award Show on FOX in which Nicole Richie said “shit” and “fuck”) “NYPD Blue” (FCC held that “dick” and “dickhead” were OK, but that “bullshit” is indecent and profane based on complaints against 9 episodes broadcast between January 14 and May 6, 2003) “NYPD Blue” (FCC held that “dick” and “dickhead” were OK, but that “bullshit” is indecent and profane based on complaints against 9 episodes broadcast between January 14 and May 6, 2003) “The Early Show” (December 13, 2004) (FCC held that guest calling another “Survivor” contestant a “bullshitter” during a news interview was indecent and profane) “The Early Show” (December 13, 2004) (FCC held that guest calling another “Survivor” contestant a “bullshitter” during a news interview was indecent and profane)

Broadcasts That Do Not Violate Indecency/Profanity/Obscenity Restrictions “Alias” (January 5, 2005)(non-graphic sex scene is not indecent because it doesn’t violate community standards) “Alias” (January 5, 2005)(non-graphic sex scene is not indecent because it doesn’t violate community standards) “Will and Grace” (November 11, 2004) (scenes of characters adjusting clothed breasts do not violate contemporary community standards) “Will and Grace” (November 11, 2004) (scenes of characters adjusting clothed breasts do not violate contemporary community standards) “Two and a Half Men” (February 21, 2005) (scene where female doctor apparently is touching character’s scrotum during a medical exam while he makes “mildly suggestive comments” is not indecent) “Two and a Half Men” (February 21, 2005) (scene where female doctor apparently is touching character’s scrotum during a medical exam while he makes “mildly suggestive comments” is not indecent) “Committed” (March 8, 2005) (woman apparently grabbing a man’s genitals to help him hit the high notes in the national anthem is not indecent) “Committed” (March 8, 2005) (woman apparently grabbing a man’s genitals to help him hit the high notes in the national anthem is not indecent) “Golden Phoenix Hotel & Casino Commercial” (February 19, 2005) (casino commercial for “Perfect 10” show is not obscene or indecent) “Golden Phoenix Hotel & Casino Commercial” (February 19, 2005) (casino commercial for “Perfect 10” show is not obscene or indecent) “The Oprah Winfrey Show” (March 18, 2004) (“highly graphic and explicit” discussion of sexual language of teens that “continues at length,” including such terms as “tossed salad,” “rainbow party,” and “booty call” is not indecent) “The Oprah Winfrey Show” (March 18, 2004) (“highly graphic and explicit” discussion of sexual language of teens that “continues at length,” including such terms as “tossed salad,” “rainbow party,” and “booty call” is not indecent) Political Advertisement (October 14, 2004) (political advertisement with references to rape and sodomy is not indecent) Political Advertisement (October 14, 2004) (political advertisement with references to rape and sodomy is not indecent)

Broadcasts That Do Not Violate Indecency/Profanity/Obscenity Restrictions “The Amazing Race 6” (December 21, 2004) (graffiti in background that says “fuck cops” is not indecent or profane because it is “not graphic or explicit” and “the image is displayed only momentarily”) “The Amazing Race 6” (December 21, 2004) (graffiti in background that says “fuck cops” is not indecent or profane because it is “not graphic or explicit” and “the image is displayed only momentarily”) Various Programs Containing Expletives (various dates between August 31, 2004 and February 28, 2005) (Complaints dismissed against various programs that included language such as “hell,” “damn,” “bitch,” “pissed off,” “up yours,” “ass,” “for Chist’s sake,” “kiss my ass,” “fire his ass,” “ass is huge,” and “wiping his ass” as not indecent or profane. Programs included The Simpsons, North Shore, Father of the Pride, Girlfriends, Half and Half, Second Time Around, America’s Next Top Model, Family Matters, Cuts, and one “unspecified program.) Various Programs Containing Expletives (various dates between August 31, 2004 and February 28, 2005) (Complaints dismissed against various programs that included language such as “hell,” “damn,” “bitch,” “pissed off,” “up yours,” “ass,” “for Chist’s sake,” “kiss my ass,” “fire his ass,” “ass is huge,” and “wiping his ass” as not indecent or profane. Programs included The Simpsons, North Shore, Father of the Pride, Girlfriends, Half and Half, Second Time Around, America’s Next Top Model, Family Matters, Cuts, and one “unspecified program.) “Family Guy” (January 16, 2005) (use of the word penis along with various euphemisms in story about father’s anxiety that his penis is smaller than his son’s is not indecent or profane) “Family Guy” (January 16, 2005) (use of the word penis along with various euphemisms in story about father’s anxiety that his penis is smaller than his son’s is not indecent or profane) “The Academy Awards” (February 27, 2005) (Chris Rock saying the “Superman” film “sucked” and saying “sit their asses down,” along with a video clip showing a woman eating a sausage which was suggestive of oral sex, were not indecent) “The Academy Awards” (February 27, 2005) (Chris Rock saying the “Superman” film “sucked” and saying “sit their asses down,” along with a video clip showing a woman eating a sausage which was suggestive of oral sex, were not indecent) “8 Simple Rules” (February 4, 2005) (the term “hampsterbaiting,” an evident reference to animal masturbation, is not indecent) “8 Simple Rules” (February 4, 2005) (the term “hampsterbaiting,” an evident reference to animal masturbation, is not indecent)

Broadcasts That Do Not Violate Indecency/Profanity/Obscenity Restrictions “The Today Show” (January 11, 2005) (brief exposure of man’s penis during news footage of rescue attempt from a flood is not indecent because it is not graphic, is not repeated, and, in context, not patently offensive) “The Today Show” (January 11, 2005) (brief exposure of man’s penis during news footage of rescue attempt from a flood is not indecent because it is not graphic, is not repeated, and, in context, not patently offensive) “The Simpsons” (September 9, 2004) (scene of Mr. Burns and Smithers at a strip club is not indecent) “The Simpsons” (September 9, 2004) (scene of Mr. Burns and Smithers at a strip club is not indecent) “America’s Funniest Home Videos” (February 5, 2005) (video of infant falling back onto pacifier in segment entitled “butt plug” is not indecent) “America’s Funniest Home Videos” (February 5, 2005) (video of infant falling back onto pacifier in segment entitled “butt plug” is not indecent) “Green Bay Packers v. Minnesota Vikings” (January 9, 2005) (player pretending to “moon” the crowd is not indecent) “Green Bay Packers v. Minnesota Vikings” (January 9, 2005) (player pretending to “moon” the crowd is not indecent) “Medium” (January 17, 2005) (scene of husband shooting wife in the head during a therapy session depicts violence, not indecency) “Medium” (January 17, 2005) (scene of husband shooting wife in the head during a therapy session depicts violence, not indecency)

Without a Trace – Teen Sex

Oprah on Teen Sex Rainbow PartyTossed Salad

When is talking about teen sex OK? Discussion on Oprah was “highly graphic and explicit,” as well as “not brief,” but these factors were outweighed by the fact that it was not “pandering” or “shocking” in context. Discussion on Oprah was “highly graphic and explicit,” as well as “not brief,” but these factors were outweighed by the fact that it was not “pandering” or “shocking” in context. Program focused on the importance of “serious, potentially harmful behaviors of teens” and “[i]t would have been difficult to educate parents regarding teenagers’ sexual activities without at least briefly describing those activities.” Program focused on the importance of “serious, potentially harmful behaviors of teens” and “[i]t would have been difficult to educate parents regarding teenagers’ sexual activities without at least briefly describing those activities.”

And when is it not? According to the FCC, the 60 seconds or so that were the subject of the complaint went “well beyond what the story line could reasonably be said to require.” According to the FCC, the 60 seconds or so that were the subject of the complaint went “well beyond what the story line could reasonably be said to require.” Godfathers and Sons: “[W]e disagree that the use of such language was necessary to express any particular viewpoint in this case.” It was not “demonstrably essential to the nature of an artistic or educational work or essential to informing viewers on a matter of public importance.” Godfathers and Sons: “[W]e disagree that the use of such language was necessary to express any particular viewpoint in this case.” It was not “demonstrably essential to the nature of an artistic or educational work or essential to informing viewers on a matter of public importance.”

To vest a few fallible men … with vast powers of literary or artistic censorship, to convert them into what J.S. Mill called a “moral police,” is to make them despotic arbiters of literary products. If one day they may ban mediocre books as obscene, another day they may do likewise to a work of genius. Originality, not too plentiful, should be cherished, not stifled …. [A]uthors must cope with publishers who, fearful about the judgments of governmental censors, may refuse to accept the manuscripts of contemporary Shelleys or Mark Twains or Whitmans. United States v. Roth, 237 F.2d 796, 823 (2d Cir. 1956) (Frank, J., concurring) (Appendix to opinion), aff’d, 354 U.S. 476 (1957).