Washington
Update
First Amendment Lawyers Association
February 2009
Robert Corn-Revere
Davis Wright Tremaine LLP
Indecency Appeals

FCC v. Fox Television Stations, Inc., No. 07-582
(argued Nov. 4, 2008).

CBS Corporation v. FCC, 535 F.3d 167 (3d Cir.
2008), petition for certiorari filed Nov. 18, 2008.

ABC Inc. v. FCC, No. 08-0841 (2d Cir.) (argued
February 5, 2009).
Fox Television Stations, Inc. v. FCC, 489 F.3d
444 (2d Cir. 2007).
Cher: “Fuck ‘em”
Nicole: “Cow shit out of a Prada purse . . .”
FCC v. Fox Television Stations, No. 07-582

Supreme Court accepted certiorari in
March.

Government argues that review must be
limited to APA questions.

Argued Nov. 4, 2008.
CBS Corp. v. FCC, 535 F.3d 167 (3d Cir. 2008).
CBS Corp. v. FCC, 535 F.3d 167 (3d Cir. 2008).

FCC violates APA by
ignoring well-established
“fleeting material” policy;

Contrary to FCC’s claims,
it has never treated
images differently from
words;

FCC
cannot
impose
liability without fault –
First Amendment requires
scienter;

Remanded to FCC.
ABC Inc. v. FCC, No. 08-0841 (2d Cir.)

On January 25, 2008, FCC issued a Notice of
Apparent Liability for $27,500 to 52 owned
and/or affiliated stations for a February 23, 2003
episode of NYPD Blue. Forfeiture Order issued
February 20, 2008.

NAL proposed $1.43 million fine. Adjusted
downward to $1.21 million in Forfeiture Order.

Petitions for Review filed in Second Circuit.
Drumming up Business

TAKE ACTION on Offensive Super Bowl Ads! Every year, the Super
Bowl draws the largest audience of any single program on television. Whole
families -- from grandparents to young children -- gather to watch America's
biggest sporting event. Next to the game itself, viewers are entertained by
the broadcast's commercials. But while most of the ads are creative and
humorous, viewers can depend on it -- some commercials will be crass and
offensive. Broadcasters, advertisers and the NFL should respect the fact that
millions of children will be in the audience, and should keep the entire show
safe for families.
If YOU see an ad that offends you during the Super Bowl, you can TAKE
ACTION! Contact the following with your concerns:
Roger Goodell, Commissioner
National Football League
280 Park Ave. 15th Floor
New York, NY 10017
Phone: (212) 450-2000
Fax: (212) 681-7599
Web E-mail:
http://www.nfl.com/contact-us
Jeffrey Zucker President & CEO
NBC Universal, Inc.
30 Rockefeller Plaza
New York, NY 10112
Phone: (212) 644-4444
Fax: (212) 664-4085
E-mail: nbcsports@nbcuni.com
NBC’s Rejection
Sent via e-mail
The PETA spot submitted to Advertising Standards depicts a level of sexuality exceeding
our standards. Listed below are the edits that need to be made. Before finalizing the
spot, we would like to view a Quicktime file as well as a DVD with high resolution.
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:12- :13- licking pumpkin
:13- :14- touching her breast with her hand while eating broccoli
:19- pumpkin from behind between legs
:21- rubbing pelvic region with pumpkin
:22- screwing herself with broccoli (fuzzy)
:23- asparagus on her lap appearing as if it is ready to be inserted into vagina
:26- licking eggplant
:26- rubbing asparagus on breast
Victoria Morgan
Vice President, Advertising Standards
NBC Universal
What to expect
in the new Administration
Rationales for Broadcast Regulation

“Because of the scarcity of radio frequencies the
Government is permitted to put restraints on licensees
in favor of others whose views should be expressed
on this unique medium” Red Lion Broadcasting Co.
v. FCC (1969).

“Broadcast media have established a uniquely
pervasive presence in the lives of all Americans” and
is “uniquely accessible to children.” FCC v. Pacifica
Foundation (1978).
“It is reasonable to put all media under some obligation to
serve the public interest. Indeed, all media have typically
been party to some sort of social compact. It isn’t fair or
sustainable to put obligations on broadcast and cable that
cannot be sustained amid the increasing competition among
broadcast, cable, DBS, LMDS, and wireless cable . . . [And]
it is going to be necessary to quantify public interest
obligations.”
Former FCC Chairman Reed Hundt, 1996.
Is “violence” the new “indecency?”

“We believe that developing an appropriate definition of
excessively violent programming would be possible, but such
language needs to be narrowly tailored and in conformance
with judicial precedent. . . . Congress likely has the ability and
authority to craft a sustainable definition.”

“The Supreme Court’s Pacifica decision and other decisions
relating to restrictions on the broadcast of indecent content
provide possible parallels for regulating violent television
content.”

“Congress could implement a time channeling solution . . .
and/or mandate some other form of consumer choice in
obtaining video programming, such as . . . family tiers or [sale
of channels] on an a la carte basis.”
The Maginot
Line
Andre-Louis-Rene Maginot
The Electronic Maginot
Line
Rationales do not extend to cable . . .

Because of “fundamental technological differences between
broadcast and cable transmission” the application of “the more
relaxed standard of scrutiny adopted in Red Lion and the other
broadcast cases is inapt when determining the First
Amendment validity of cable regulation.” Turner Broadcasting
System v. FCC (1994).

The key difference between cable television and broadcasting
“on which this case turns” is that cable systems have the
capacity to block unwanted channels on a household-byhousehold basis. United States v. Playboy Entertainment
Group, Inc. (2000).
. . . or to the Internet
“Online communication “includes not only
traditional print and news services, but also
audio, video and still images, as well as
interactive real-time dialogue.”
“Our cases provide no basis for qualifying the
level of First Amendment scrutiny that should be
applied to this medium.” Reno v. ACLU (1997).
Regulatory Mission Creep

Professor Robert Shayon of the Annenberg School of
Communications testified that content regulation might be
extended constitutionally to tradition newspapers like the New
York Times and the Wall Street Journal because they transmit
their copy via satellite to printing plants across the country.

“[T]he spectrum is limited . . . and if the big users shut out the
small users, then the government should act to make fairness
the ruling guideline. . . The government is not only a
repressive factor; it represents the total community and
sometimes can be used constructively.”
Senate Commerce Committee Hearings
On the Fairness Doctrine, 1987
Communications Decency Act

Congress equated the Internet with radio and
television
and
applied
broadcast-type
indecency rules.

Supreme Court reasoned that the Internet can
hardly be considered a “scarce” expressive
commodity. Strict scrutiny applies to content
regulations.
. . . is already underway

FCC applies children’s advertising, political
broadcasting, and closed captioning rules to
cable operators.

FCC issued enforcement decisions penalizing
Comcast for use of video news releases.

FCC is proposing to regulate cable networks
directly in product placement proceeding.
Brought to you by Coca-Cola. . . . The pause that refreshes . . .
The public interest at work
Localism – the new “fairness”

FCC adopted quarterly “enhanced disclosure”
reporting forms. Not approved by OMB.

FCC is proposing localism “guidelines” to be
used as a threshhold in license renewal
proceedings.

Proposal includes
“advisory boards.”
mandatory
community
Setting the stage for future regulation:

Child Safe Viewing Act of 2008. FCC must
“examine the existence and availability of advanced
blocking technologies that parents could use across a
variety of communications devices or platforms to
protect their children from inappropriate content.

Proposals exist for “science based ratings” to develop
a universal system based on the “physical, mental,
and social health outcomes from media use.” Center
for Media and Child Health.
Regulating the Wireless Web

Further Notice of Proposed Rulemaking for Service Rules for
Advanced Wireless Services (June 20, 2008).

Content Network Filtering Requirement: “The licensee of the
2155-2188 MHz band (AWS-3 licensee) must provide as part
of its free broadband service a network-based mechanism . . .
[t]hat filters or blocks images and text that constitute obscenity
or pornography and, in context, as measured by contemporary
community standards and existing law, any images or text that
otherwise would be harmful to teens and adolescents.”

“For purposes of this rule, teens and adolescents are children 5
through 17 years of age.”
How far may this extend? Public
interest regulation for the Kindle?
“If history is any guide, it will only
be a matter of time before some
well-meaning lawmaker or some
ardent advocacy group suggests that
the use of the ‘public airwaves’
justifies regulating e-books as we do
some other mass media.”
Ronald Collins
First Amendment Scholar
Freedom Forum, 2008.
Text is delivered by 3G wireless frequencies.
What about the children?
And is it fair?

Amazon claims that it makes more than 110,000 books
available, including more than 90 of 112 current New York
Times Best Sellers.

But what about the 22 that were excluded? Should there be a
right of access?

Should politicians be empowered to demand that their
campaign biographies be available for the Kindle? Should
there be “equal opportunities” rules?