Broadcast Indecency, Profanity and Obscenity Presented by Todd Gray

1. Broadcast Indecency, Profanity and ObscenityPresented by Todd Gray 2007 PBMA Conference:

2. Background on FCC Regulation of Indecent, Obscene and Profane Broadcast Material Obscenity may not be broadcast at any time Average person, applying contemporary community standards, finds the material, as a whole, appeals to the prurient interest; Material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and Material, taken as a whole, must lack serious literary, artistic, political or scientific value

3. Indecency Describes or depicts sexual or excretory activities or organs, and Must be patently offensive as measured by contemporary community standards for the broadcast medium, taking into account: Explicitness or graphic nature of the description; Whether material dwells on or repeats at length descriptions of sexual or excretory organs or activities; and Whether material panders to, titillates, or shocks the audience

4. Indecency, continued Three “patently offensive” factors listed above balanced on a case-by-case basis “The full context in which the material appeared is critically important” Indecent material not actionable if broadcast during “safe harbor” of 10 p.m. to 6 a.m. local time

5. Profanity Denotes “certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance” First applied in 2004: FCC unanimously found that Bono’s utterance of “f--king” during Golden Globe Awards broadcast was profane Despite fleeting & isolated use, and not used to describe sexual or excretory organs or activities Uses of “f--k” and “s--t” have been found to be profane and therefore actionable Profanity

6. Recent Indecency Developments Broadcast Decency Enforcement Act of 2005 Signed into law by President Bush on June 15, 2006 Raises maximum FCC fines for broadcast of obscene, indecent or profane material to $325,000 $325,000 for each violation Up to a maximum fine of $3,000,000

7. Recent FCC Rulings on Broadcast Indecency Complaints FCC released omnibus decision on various TV complaints in March 2006 Reconsideration of certain decisions released in November 2006

8. March 2006 FCC Notices of Apparent Liability Found to be Indecent and/or Profane: The Surreal Life 2, Spanish language movie and talk show, music videos, Pursuit of D.B. Cooper (movie), PBS Documentary – The Blues, Billboard Music Awards, NYPD Blues, CBS Early Show, Without a Trace Upheld fine against CBS and its stations for 2004 Janet Jackson Super Bowl “malfunction”

9. March 2006 Rulings, continued Found NOT to be Indecent or Profane: Alias, Will and Grace, Two and a Half Men, Oprah, Family Guy, Today Show, casino commercial, political ad, The Simpsons, others. Various programs containing expletives (“hell,” “damn,” “ass,” “pissed off,” “for Christ’s sake,” “slutty sister,” etc.)

10. Key Developments in March 2006 Decisions Included FCC’s Treatment of: Graphic and pandering nudity or sexual scenes Any use of “f--k” and “s--t”, and derivatives Unless in narrow contexts (such as expletives uttered by American soldiers under fire) Even if no meaningful association with excretory or sexual functions Little or no leeway for serious programming on cultural/artistic topics

11. Other Notable Developments in March 2006 Decisions: For the first time, a PBS presentation (a documentary) found to be indecent, as well as profane First occasions in which the FCC analyzed advertisements under its indecency standards In almost all cases, the FCC proposed the highest possible statutory fines, rather than merely the traditional base fines

12. November 6, 2006 FCC Order Revisited complaints against Billboard Music Awards, NYPD Blue, and CBS Early Show Upheld findings that “f--k” and “s--t” in Billboard Music Awards were indecent and profane Reversed violation for “bulls--t” on CBS Early Show because bona fide news program Reversed violation for “bulls--t” on NYPD Blue On procedural grounds (complaint not filed by viewers of station in question)

13. Noteworthy Developments in FCC’s November 2006 Order: Recognized possible human error in using delay equipment Reinforced profanity analysis Decided to proceed with caution in evaluation of complaints involving news programming

14. Legal Challenges Two Federal Appeals Court challenges to the FCC’s rulings are on-going: CBS challenge in the 3rd Circuit U.S. Court of Appeals in Philadelphia Fox challenge in the 2nd Circuit U.S. Court of Appeals in New York Decisions could come in 2007

15. FCC May Refrain from New Indecency Rulings Pending Court Outcomes Such as Bush’s use of “s--t” at 2006 G-8 summit Broadcast un-edited by some TV and radio stations, including some public broadcasters

16. Precautionary Advice: Delay live broadcasts and block offensive programming Preview controversial/questionable programming Attempt to include indemnification protection in contracts Require advance notice from content providers Revise personnel manuals

17. Questions? Comments? Thank you. Todd Gray 202-776-2571 tgray@dowlohnes.com