Transcript Robert Corn-Revere Davis Wright Tremaine LLP 2004 Super Bowl

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.

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.
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.

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.”
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)

“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)

“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 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 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)

“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)

“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)

“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)

“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)
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”)

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)

“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)
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 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)

“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)
Without a Trace – Teen Sex
Oprah on
Teen Sex
Rainbow Party
Tossed 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.

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.”

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).