1. FCC Indecency Litigation Update Robert Corn-Revere Davis Wright Tremaine LLP First Amendment Lawyers Association February 2007

2. FCC Enforcement Actions in 2006 “Without a Trace.” FCC proposed fine of $3.6 million for broadcasts in the Central and Mountain time zones of CBS prime time show. Reduced to $3.35 million. “Without a Trace.” FCC proposed fine of $3.6 million for broadcasts in the Central and Mountain time zones of CBS prime time show. Reduced to $3.35 million. Omnibus Order. FCC proposed fines totalling $355,000 for six programs; found additional violations (but proposed no fines) for four other programs; dismissed complaints against various other programs. Omnibus Order. FCC proposed fines totalling $355,000 for six programs; found additional violations (but proposed no fines) for four other programs; dismissed complaints against various other programs. Super Bowl Forfeiture. FCC upheld fine of $550,000 for CBS broadcast of 2004 Super Bowl. Super Bowl Forfeiture. FCC upheld fine of $550,000 for CBS broadcast of 2004 Super Bowl.

3. Circuit Court Litigation Fox Television Stations, Inc. v. FCC, No. 06- 1760 (2d Cir.) (challenge to Section III.B. of Omnibus Order). Fox Television Stations, Inc. v. FCC, No. 06- 1760 (2d Cir.) (challenge to Section III.B. of Omnibus Order). CBS Corporation v. FCC, No. 06-3575 (3d Cir.) (challenge to Super Bowl forfieture). CBS Corporation v. FCC, No. 06-3575 (3d Cir.) (challenge to Super Bowl forfieture).

4. 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 $3.35 million. FCC proposed fine of $3.6 million for broadcasts in the Central and Mountain time zones. Reduced to $3.35 million. Complaint focused on what PTC called a “teen orgy.” No nudity involved. Complaint focused on what PTC called a “teen orgy.” No nudity involved. Episode was based on a PBS documentary. Episode was based on a PBS documentary. Opposition to NAL filed April 14, 2006. No action yet by FCC. Opposition to NAL filed April 14, 2006. No action yet by FCC.

5. When is talking about teen sex OK? Discussion on episode of 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 episode of 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.”

6. And when is it not? According to the FCC, the 60 seconds or so that were the subject of the Without a Trace 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 Without a Trace 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.”

7. Omnibus Order Section III.B. 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).

8. FCC Remand Proceeding Over the network’s objections, FCC sought remand. Over the network’s objections, FCC sought remand. Court granted motion, with automatic reversion in 60 days, followed by expedited briefing and argument schedule. Court granted motion, with automatic reversion in 60 days, followed by expedited briefing and argument schedule. FCC sent Letters of Inquiry to networks, and sought general comments by Public Notice. FCC sent Letters of Inquiry to networks, and sought general comments by Public Notice.

9. Decision on Remand FCC reaffirmed indecency/profanity findings regarding “Billboard Music Awards.” FCC reaffirmed indecency/profanity findings regarding “Billboard Music Awards.” FCC dismissed complaints against “NYPD Blue,” because they all originated from the same individual in Alexandria, Virginia. FCC dismissed complaints against “NYPD Blue,” because they all originated from the same individual in Alexandria, Virginia. FCC dismissed complaint against “The Early Show,” deferring to “CBS’s plausible characterization of its own programming” as news. FCC dismissed complaint against “The Early Show,” deferring to “CBS’s plausible characterization of its own programming” as news.

10. That was then... From the Omnibus 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.”

11. This is now... According to the Remand 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.”

12. A News Exception? No. “To be sure, there is no outright news exemption from our indecency rules.”

13. Confused yet? The FCC has “failed to develop a consistent and coherent indecency enforcement policy.” Commissioner Jonathan Adelstein Concurring 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.”

14. Oral Argument in Fox Television Stations, Inc. v. FCC, No. 06-1760 (2d Cir.) Expedited hearing, December 20, 2006. Expedited hearing, December 20, 2006. Panel: Rosemary Pooler, Pierre Leval, and Peter Hall. Panel: Rosemary Pooler, Pierre Leval, and Peter Hall. Judge Robert Sack recused. Judge Robert Sack recused. Argument transmited live on C-SPAN (including C-SPAN Radio). Argument transmited live on C-SPAN (including C-SPAN Radio).

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

16. CBS Corporation v. FCC, No. 06-3575 (3d Cir.) Briefing concluded on January 8, 2007. Briefing concluded on January 8, 2007. No argument date yet scheduled. No argument date yet scheduled.

17. Outlook for 2007?