Washington Update

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Washington Update
First Amendment Lawyers Association February 2008
Robert Corn-Revere Davis Wright Tremaine LLP
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Activity at the FCC
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Remember her?
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The FCCs Complaint-Driven Process at Work
148,281
212
1,000
176
4,055
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Source Quarterly Reports on Informal Consumer
Inquiries And Complaints 1st and 2nd Quarters
2007 (January 14, 2008)
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And the complaints roll in . . .

• American Family Association claims its members
  have filed thousands of complaints against their
  local ABC-TV affiliates. (Radio Ink, January 22,
  2008).
• We sent out our alert last night, and as of a
  few minutes ago, 73,000 people had filed a
  complaint with the FCC against their local ABC
  network station. (Family in Focus, January 22,
  2008).

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The FCCs former candor

• Indecency Complaints remain the top category of
  Radio and Television Broadcasting complaints and
  increased from 121,688 in the 3rd quarter to
  317,833 in the 4th quarter. Increases in the
  number of complaints received in connection with
  e-mail or write-in campaigns directed at specific
  radio or television broadcasts during the quarter
  accounted for the change.
• FCC Report on 4th Quarter 2004 Complaints, March
  4, 2005.

• There was a decline in the number of Radio and
  Television Broadcasting complaints, which dropped
  from 317,833 in the 4th quarter 2004 to 157,650
  in the 1st quarter 2005. A decrease in the number
  of complaints received in connection with e-mail
  or write-in campaigns directed at specific radio
  or television broadcasts accounted for the
  change.
• FCC Report on 1st Quarter 2005 Complaints, August
  12, 2005.

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Compare the current FCC report

• First Quarter Complaints in the categories
  reported show a 327 increase this quarter.
  Although most categories show a marginal
  increase, the major source of this spike was in
  the category for Radio and Television
  Broadcasting under Programming
  Indecency/Obscenity. The number of Radio and
  Television Broadcasting complaints increased this
  quarter to 151,008, with Programming
  Indecency/Obscenity representing over 98 of the
  complaints in this category.
• Second Quarter Complaints in the categories
  reported reflect a 19.4 decrease this quarter.
  Although most categories show a marginal change,
  the major source of this decrease was in the
  category for Radio and Television Broadcasting
  under Programming Indecency/Obscenity. The number
  of Radio and Television Broadcasting complaints
  decreased this quarter to 5,675 from 151,008.
  Programming Indecency/ Obscenity alone decreased
  from 149,457 last quarter to 4,368 complaints
  this quarter.

First and second quarters 2007
Indecency complaints decreased 97 in second
quarter 2007.
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January 25, 2008

• FCC issues Notice of Apparent Liability for
  27,500 to 52 owned and/or affiliated stations
  for a February 23, 2003 episode of NYPD Blue.
• Total proposed fine comes to 1.43 million.
• Under current statutory maximum, it would be
  16.9 million.

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TheFCC is shocked, shocked . . .

• We find that the scenes depiction of adult
  female nudity, particularly the repeated shots of
  a womans naked buttocks, is titillating and
  shocking.
• As discussed above, the scene includes multiple,
  close-up views of the womans nude buttocks, with
  the camera at one point panning down her naked
  back for a lingering shot of her buttocks. The
  partial views of the womans breasts, as well as
  the camera shots of the boys shocked face from
  between her legs and of her upper torso from
  behind his head, are also relevant contextual
  factors that serve to heighten the titillating
  and shocking nature of the scene.

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Add your own punch line

• As an initial matter, we find that the
  programming at issue is within the scope of our
  indecency definition because it depicts sexual
  organs and excretory organs specifically an
  adult womans buttocks. Although ABC argues,
  without citing any authority, that the buttocks
  are not a sexual organ, we reject this argument,
  which runs counter to both case law and common
  sense.

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FCC Complaints vs. Public Preferences
PTCs List of Ten Worst TV Shows NielsenRating (2003- 2004) NielsenRating (2002- 2003) Notable Awards
NYPD Blue 50 9.9 million 36 11.6 million 82 Emmy nominations and 20 Emmy wins since 1993 Winner, Golden Globes Best Television (Drama) Series (1994) Nominee, Golden Globes Best Television (Drama) Series (1995, 1996, 1997, 1998).
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The Hecklers Veto

• We reject ABCs argument that, because of the
  modest number of complaints the network
  received, and the programs generally high
  ratings, the contemporary community standards of
  the viewing community embrace, rather than
  reject, this particular material. As a matter of
  clarification, while ABC may not have received
  many complaints about the program, the Commission
  received numerous complaints, including thousands
  of letters from members of various citizen
  advocacy groups.
• The Commissions indecency determinations are
  not governed by the number of complaints received
  about a given program, however, nor do they turn
  on whether the program or the station that
  broadcast it happens to be popular in its
  particular market.

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Popularity is the problem . . .
The fact that the program is watched by a
significant number of viewers serves to increase
the likelihood that children were among those who
may have seen the indecent broadcasts, thereby
increasing the public harm from the licensees
misconduct.
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FCC gave ABC only until February 11 to oppose the
NAL at the FCC.
FCC rules provide that a respondant will be
afforded a reasonable period of time (usually 30
days from the date of the notice) to show, in
writing, why a forfeiture penalty should not be
imposed, should be reduced, or to pay the
forfeiture. 47 C.F.R. 1.80(f)(3).
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STATEMENT OF COMMISSIONER DEBORAH TAYLOR TATE
Our action today should serve as a reminder to
all broadcasters that Congress and American
families continue to be concerned about
protecting children from harmful material and
that the FCC will enforce the laws of the land
vigilantly. In fact, pursuant to the Broadcast
Decency Act of 2005, Congress increased the
maximum authorized fines ten-fold. The law is
simple. If a broadcaster makes the decision to
show indecent programming, it must air between
the hours of 10 p.m. and 6 a.m. This is neither
difficult to understand nor burdensome to
implement.
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Indecency Appeals
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CBS Corporation v. FCC, No. 06-3575 (3d Cir.)

• Briefing concluded on January 8, 2007.
• Argued on September 11, 2007 before Judges
  Scirica, Fuentes and Rendell.
• Audio feed of argument transmitted on C-SPAN.

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Fox Television Stations, Inc. v. FCC, 489 F.3d
444 (2d Cir. 2007)

• Case was decided on APA grounds.
• After getting two extensions, U.S. government
  filed for certiorari in November 2007.
• Network oppositions were filed February 1, 2008.
• Petition should be considered at February 29
  conference.

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The Supreme Court Caseload
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Opinions of the Court
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Source Year-end Reports of the Federal Judiciary
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Percentage of Cases Granted Full Review
Not counting IFP cases
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Total cases filed with the Supreme Court
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Number of 5-4 Opinions
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5-4 Decisions as Percentage of Total Opinions
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What will the Supreme Court do?