Washington Washington

UpdateUpdate

Robert Corn-RevereDavis Wright Tremaine LLP

First Amendment Lawyers Association

February 2008

Activity at the FCC

Remember her?Remember her?

0

20,000

40,000

60,000

80,000

100,000

120,000

140,000

160,000

January February March April May June

Indecency Complaintsby Month - 2007

The FCC’s Complaint-Driven Process at Work

148,281

1,000 176 4,055 212 101

Source: Quarterly Reports on Informal Consumer InquiriesAnd Complaints – 1st and 2nd Quarters 2007 (January 14, 2008)

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).

The FCC’s 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 4FCC Report on 4thth Quarter Quarter 2004 Complaints, March 4, 2004 Complaints, March 4, 2005.2005.

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

FCC Report on 1st Quarter 2005 FCC Report on 1st Quarter 2005 Complaints, August 12, 2005.Complaints, August 12, 2005.

0

20,000

40,000

60,000

80,000

100,000

120,000

140,000

160,000

January February March April May June

Indecency Complaintsby Month - 2007

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 quarters2007:

Indecency complaints decreased 97%in second quarter 2007.

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.

TheFCC is shocked, shocked . . . “We find that the scene’s depiction

of adult female nudity, particularly the repeated shots of a woman’s naked buttocks, is titillating and shocking.”

“As discussed above, the scene includes multiple, close-up views of the woman’s 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 woman’s breasts, as well as the camera shots of the boy’s 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.”

Add your own punch line: ““As an initial matter, we As an initial matter, we

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

FCC Complaints vs. Public Preferences

PTC’s List of Ten “Worst TV Shows”

NielsenRating

(2003- 2004)

NielsenRating

(2002- 2003)Notable Awards

NYPD Blue#50

9.9 million#3611.6

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).

The Heckler’s Veto “We reject ABC’s argument that, because of the ‘modest

number of complaints’ the network received, and the program’s 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 Commission’s 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.”

“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.”

Popularity is the problem . . .

FCC gave ABC only until February11 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, shouldbe reduced, or to pay the forfeiture.” 47 C.F.R. § 1.80(f)(3).

STATEMENT OF STATEMENT OF

COMMISSIONER DEBORAH TAYLOR TATECOMMISSIONER 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.

Indecency Appeals

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.

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

The Supreme Court Caseload

83

79

81

73

68

70

72

74

76

78

80

82

84

2003 2004 2005 2006

Opinions of the Court

8479

71

9189

73

8785

74

8782

69

7874

67

0

10

20

30

40

50

60

70

80

90

100

2002 2003 2004 2005 2006

Cases ArguedCases ResolvedOpinions

Source: Year-end Reports of the Federal Judiciary

4.2

4

3.7

3.6

3.3

3.4

3.5

3.6

3.7

3.8

3.9

4

4.1

4.2

2003 2004 2005 2006

Review Granted

Percentage of Cases Granted Full Review* *Not counting IFP cases

0

1000

2000

3000

4000

5000

6000

7000

8000

9000

2002 2003 2004 2005 2006

Cases FiledIFP CasesPaid Cases

Total cases filed with the Supreme Court

1918

9

23

0

5

10

15

20

25

2003 2004 2005 2006

Number of 5-4 Opinions

23 23

11

32

0

5

10

15

20

25

30

35

2003 2004 2005 2006

5-4 Decisions as Percentage of Total Opinions

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What will the Supreme Court do?