1. No. 13-1234, 13-1235
IN THE
United States Court of Appeals for the District of Columbia Circuit
_____________________________
Viacom Inc., NBCUniversal Media, LLC, and ESPN Inc.
in conjunction with Turner Broadcasting System Inc.
Petitioners
v.
Federal Communications Commission
Respondents
_____________________________
BRIEF FOR PETITIONERS
______________________
Joshua G. A. Knutson
1102 2nd St. S Apt. 210
Casselton, ND 58012
Lead Counsel, Counsel for NBCUniversal Media, LLC
Stephanie K. Storslee
2024 Harbor Dr.
Bismarck, ND 58504
Counsel for NBCUniversal Media, LLC
Susan E. Margrave
606 W Oak Ave
El Segundo, CA 90245
Counsel for Viacom Inc.
Peter C. Odney
810 Iowa Ave W
St. Paul, MN 55117
Counsel for ESPN Inc.
Nolan A. Skowronek
1160 E Bruce Ave
Gilbert, AZ 85234
CounselforTurner Broadcasting
SystemInc.
2. Question Presented
This case involves a challenge to the FCC’s right to fine four broadcasting and cable
companies for violating section 325 of the Communications Act of 1934 as amended in section
11.45 of the Commission’s rules. This Act deals with the Emergency Alert System (EAS). This
system tells the public during television programs about weather updates for the local area,
presidential news, and AMBER alerts for the area. The Act prohibits the use of the EAS tone and
system except in the case of a weekly or monthly test, or an actual activation of the system for the
reasons mentioned above.
Turner Broadcasting System (TBS) allegedly used the EAS tone in a promotion of a new
episode of the TV show “Conan” to announce the arrival of a guest, Jack Black.
Viacom Inc., NBCUniversal Media, LLC, and ESPN Inc. allegedly used the EAS tone in
a commercial preview of the movie “Olympus Has Fallen” in the “No Surrender” trailer for that
movie.
The four appellants have appealed their fines to the United States Court of Appeals for the
District of Columbia Circuit to review the following question:
Was the FCC correct in assessing liability fines on the four companies mentioned above,
or were there rights violated and therefor was the FCC wrong in assessing said fines?
Parties to the Proceeding
Petitioners below Turner Broadcasting System, Viacom Inc., NBCUniversal Media, LLC,
and ESPN Inc.
Respondents are the Federal Communications Commission.
3. Table of Contents
Opinion and Order Below ………..……………………………………………………………… 5
Jurisdiction ………………………………………………………………………………………. 5
Relevant Statutory Provisions………….………………………………………………………… 5
Statement of the Case ……….…………………………………………………………………… 6
Summary of the Argument …………………………………………………………………......... 7
Argument …………………………………………………………………………...…………… 8
I. The FCC fines issued to our companies violate the First Amendment protection of
Advertisement……………………………………………………………………. 8
II. The FCC fines issued to our companies violate First Amendment protection of the
Right to Free Speech…….…………………………………….…………………. 9
III. The FCC fines issued to our companies violates the precedents set by Federal
Communications Commission v. Fox Television, Inc. (2012) and Federal
Communications Commission v. Fox Television, Inc. 556 US 502 (2009) regarding
“Inappropriate Content” and “Fleeting Expletives.”………………… 10
IV. The FCC fines issued to our companies violate precedent set in Turner I and Turner
II………………………………………………..……………………….. 12
Conclusion ………………………………….………………………………………………….. 12
4. Table of Authorities
Cases
Federal Communications Commission v. Fox Television, Inc. (2012) …………...…3, 7, 10
Federal Communications Commission v. Fox Television, Inc. 556 US 502 (2009)..3, 7, 10
Virginia Pharmacy Board v. Virginia Consumer Council 425 US 748 (1976)………..….. 8
Bigelow v. Virginia 421 US 809 (1975)…………………………………………………..……. 8
Turner Broadcasting, Inc. v. FCC 910 F. Supp 734 (1995) ……………………........ 3, 7, 12
Turner Broadcasting, Inc. v. FCC 520 US 180 (1997) ………………………………. 3, 7, 12
United States v. O’Brien ……………………………………………………………………… 12
6. No person may transmit or cause to transmit the EAS codes or Attention Signal, or a
recording or simulation thereof, in any circumstance other than in an actual National, State or
Local Area emergency or authorized test of the EAS. Broadcast station licensees should also refer
to §73.1217 of this chapter.
Statement of the Case
The Turner Broadcasting System (TBS) was fined $25,000 by the FCC for allegedly failing
to comply with their rules and regulations for section 325 of the Communications Act of 1934 as
amended in section 11.45 of the Commission’s rules. This act deals with the Emergency Alert
System (EAS). The FCC received a complaint on the twenty sixth of April stating that TBS used
the emergency weather on a commercial to tell the audience that Jack Black would be appearing
on the show “Conan.”
Viacom, NBCUniversal, and ESPN were fined for their alleged use of the EAS tone in the
“No Surrender” trailer for the movie “Olympus has Fallen” that aired on their channels.
The FCC justified their fines on the four companies with section 325 and the section 11.45
amendment. They stated that the companies deviated from the rulings in those statues and therefor
merited a Notice of Apparent Liability for Forfeiture.
The four television companies are now appealing these fines to the United States Court of
Appeals for the District of Columbia Circuit as they feel the FCC was wrong in issuing their fines
for a number of reasons that will be discussed below.
Summary of the Argument
7. We will argue against the FCC fines assessed to our four represented companies with
four main points. The first point will be that the FCC violated our First Amendment rights that
are given to advertising. We will be citing two cases from Virginia that have been used as
precedent for all advertising cases since their hearings and are still used to this day.
The second argument will be that the FCC violated general First Amendment rights of
free speech. We will be using an example from 1938 with the broadcasting of the War of the
Worlds on national radio and the differences in “panic” caused.
Our third argument will be that the FCC violates the precedents set by Federal
Communications Commission v. Fox Television, Inc. (2012) and Federal Communications
Commission v. Fox Television, Inc. 556 US 502 (2009) regarding “Inappropriate Content” and
“Fleeting Expletives.” We will be arguing that the content of our commercials fits these precedents
and thus deserves the same type of judgment as these cases.
Our final argument will deal with precedent set in Turner I and Turner II involving the
O’Brien test and excessive regulation by the government.
Argument
8. Petitioners challenge the validity of fines issued by the Federal Communications
Commission in accordance with the alleged Section 325 of the Communication Act of 1934 as
amended in Section 11.45 of the Commission’s rule. The Court of Appeals should take into
account the following arguments and deem the fines inappropriate and void.
I. The FCC fines issued to our companies violate the First Amendment
protection of Advertisements.
In 1976 the Supreme Court case of Virginia Pharmacy Board v.
Virginia Consumer Council 425 US 748 (1976) found that a statute banning
pharmacists from advertising the prices of prescription drugs was
unconstitutional under the First Amendment. In this case the Court stated:
“Speech does not lose its First Amendment protection because
money is spent to project it as an advertisement.”
In its final statement on the case, the Court decided that just because
a piece of speech is commercial in nature, it is still protected under the First
Amendment. Keeping these sentiments in mind, the FCC cannot impose
penalties on the alleged criminal companies based on the company’s First
Amendment rights to advertise as they see fit.
The Supreme Court upheld the ruling of the lower court, which had
previously ruled in favor of the plaintiffs.
We argue that this precedent applies to the “No Surrender” trailer
for “Olympus Has Fallen” because money was spent on the trailer by
Horizon Media in the development of the commercial and by our companies
in airing the commercial. Because money was spent on the “No Surrender”
trailer to make it into an advertisement for a movie, it is protected under the
First Amendment. This also applied to the commercial that promoted the
“Conan” show where Jack Black was advertised as a guest.
Another instance that follows this same type of precedent would be
Bigelow v.Virginia 421 US 809 (1975). In this case a statute was challenged
that made it a misdemeanor crime for "any person, by publication, lecture,
advertisement, or by the sale or circulation of any publication, or in any
other manner, [from encouraging] or [prompting] the procuring of abortion
or miscarriage."
Bigelow was convicted under this law when he ran an advertisement
for a women’s organization that included information about women’s
clinics that could provide abortions.
The Supreme Court voted, 7-2, in favor of Bigelow, and decided that
the state of Virginia had violated his First Amendment rights of free speech.
The Court also stated that the Virginia court’s claim that because the speech
was commercial in nature, it was not afforded the same First Amendment
9. protections, as total destruction of Bigelow’s First Amendment right to free
speech.
As the First Amendment protected each of the plaintiffs in these
cases, it should also protect the Horizon Media group who financed, created,
produced, and distributed the “No Surrender” trailer for “Olympus Has
Fallen.” This also holds true for the “Conan” commercial aired by TBS to
promote their own show. The advertisements, with these cases as lead
examples, should be protected under the First Amendment right to free
speech, and cannot be penalized in any fashion.
If we are to follow the Supreme Court’s lead in believing that just
because a piece of speech is commercial in nature, it is still protected by the
First Amendment, then there is no possible penalty that can be set against
any of the plaintiffs in this case.
II. The FCC fines issued to our companies violate First Amendment protection of
the Right to Free Speech.
The First Amendment to the Constitution of the United States of
America offers the protection of freedom of speech and expression. This is
one of the most basic and fundamental freedoms we have in the United
States. Freedom of Speech as well as the freedom of creative expression
applies our case because the showing of the “No Surrender” trailer and the
airing of the “Conan” commercial are the expressions of a creative way to
market a movie and a TV show.
The FCC will argue that the trailer does not fall under these
protections because in the First Amendment it states that “the government
may prohibit some speech that may cause a breach of the peace or cause
violence.” They argue that the trailer, with its alleged use of the EAS tone,
caused people to panic and believe that an actual emergency event was
happening. In fact, they will argue that people even called in complaints that
the commercial did just this. However, this cannot merit a fine because of
the happenings in 1938 when Orson Welles broadcasted the War of the
Worlds on national radio.
In 1938 Orson Welles used radio frequencies to broadcast a radio
play of the War of the Worlds nationally. As explained in the article
“America Under Attack 1: The War of the Worlds, Orson Welles, and
‘Media Sense’ by Paul Heyer of Wilfrid Laurier University in the Canadian
Journal of Communication volume 28, No. 2 (2003), the playing of the
fictitious story actually did cause riots in the streets and widespread panic
across the nation about the supposed end of the world.
10. In this instance the broadcasters were forced to say that it was a story
and not real, however many people sued CBS for not regulating the
broadcast to contain the panic. However, those lawsuits were settled or
dropped, and the FCC did not fine CBS for using a broadcast that caused
widespread panic.
In our case there was only complaining about the commercial and
the complaints were not concrete enough to insinuate widespread concern
over the commercial and create actual widespread panic or riots that the
White House was under siege. Also, they were not numerous enough to gain
enough media attention to make fining our companies justifiable. Because
the FCC did not fine CBS in 1938 when there was actual chaos, they cannot
be allowed to fine our companies for this reason when there was no chaos
outside a few complaints. Therefore we argue that the fine is unallowable
and unconstitutional for violating freedom of speech and expression in the
form of a TV commercial.
III. The FCC fines issued to our companies violates the precedents set by Federal
Communications Commission v. Fox Television, Inc. (2012) and Federal
Communications Commission v. Fox Television, Inc. 556 US 502 (2009)
regarding “Inappropriate Content” and “Fleeting Expletives.”
We argue that the precedents of FCC v. Fox TV (2009) and FCC v.
Fox TV (2012) have been violated in the ways of both “time” and “content”
in respects to the “EAS” tone in the “No Surrender” trailer for the movie
“Olympus Has Fallen.”
In the Federal Communications Commission v. Fox Television
(2009) case the issue of fleeting expletives was examined. On two separate
occasions Fox Television broadcast a live award show, the MTV Music
Awards, where singers Cher (2002) and Nicole Richie (2003) uttered an
expletive on live television.
After hearing the case, the Court ruled that the FCC had not
adequately, or constitutionally, explained why it changed its mind on the
fleeting use of profanity, which was before allowed.
The Court explained that the use of the “F-word” used in fleeting
speech that was not used to elicit sexual thinking or feelings was not finable.
Had the singers used the “F-word” in a more provocative manner, or used
it more than just the one time in a fleeting example that lasted only for one
second, the fines could have been assessed constitutionally. However, the
Court ruled in favor of Fox and the fines were dropped.
11. We believe that the precedent of “fleeting time period” should be
applied to our case. The EAS tone that is used for testing and for actual use
in emergencies is mandated to last eight to 25 seconds. In the “No
Surrender” trailer for “Olympus Has Fallen” the alleged EAS tone used does
not meet the eight second requirement. In fact in the three instances in the
commercial where the alleged tone appears, it does so for only four seconds,
one second, and one second.
We argue that because the alleged tone does not sound for more than
a fleeting moment that the fines against are companies cannot be allowed
due to the allowance of other fleeting “inappropriate sounds” such as the
expletives in Fox (2009).
The other Fox case deals with “inappropriate content” being shown
on television. In Federal Communications Commission v. Fox Television,
Inc. (2012), the infamous Janet Jackson wardrobe malfunction at the Super
Bowl 38 halftime show in 2004, the FCC initially fined CBS $550,000 for
showing Janet Jackson’s nipple on live television for about half a second.
The rationale for the fine was that the content of the halftime show was
“inappropriate” and “indecent.” In past cases these types of content merited
fines, but were challenged by CBS.
CBS argued that because the “indecent content” was unintentional,
accidental, and fleeting, that it was exempt from the indecency regulation.
In November 2011, the Court ruled that the broadcast was legal under the
FCC’s then-current policy of allowing “fleeting” indecency on the
airwaves, and that it was unfair of the FCC to change the policy
retroactively.
The FCC has in place regulation of the EAS tone that makes usage
of the EAS tone “indecent” or “inappropriate” in circumstances not related
to the emergency system. In following the precedent set by the
aforementioned Fox cases, the fleeting nature of the alleged tone in the “No
Surrender” trailer should be allowed and not merit the fine as it was also
deemed “inappropriate or indecent” but lasted only a brief time period,
much like the wardrobe malfunction. Because of the fleeting nature of the
alleged tone, the fines should be dismissed.
IV. The FCC fines issued to our companies violate precedent set in Turner I and
Turner II.
Turner I and Turner II are famous Supreme Court cases that
established fair competition between the cable companies and broadcasters.
The “must-carry” provision is the most recognizable issue that arose from
12. these two cases. However, another important part of these cases is relevant
to our argument.
The O’Brien Test that came from United States v. O’Brien 391 US
367 (1968) is what we argue should be applied to our case. The O’Brien
case upheld the government’s regulation of speech in furtherance of
important or substantial non-speech-related interests, with no greater
restriction on expression that is essential to the accomplishment of the
government’s objective.
The FCC will argue that the reason they restrict the use of the EAS
tone is that overuse of the tone will desensitize the public to the alert. We
argue that the outlawing of the use of the tone is overly excessive because
of the following reasons.
1) There are other ways in which people receive severe
weather alerts than just this tone, these other ways are increasingly
becoming more common that the TV or radio EAS system.
2) The public is already partially desensitized to the tone due
to the lack of use and the constant testing without actual activation.
3) The fining of non-participants to the EAS program, which
all of our clients are non-participants, is excessive because there could have
been intermediate action taken before a fine was assessed.
- FCC memos and notices were sent to participants
of the EAS program; however, none of our companies received these
documents because they are not a part of the program. Had our companies
received the documents, the fines could have been avoided.
- Also, our companies complied with the EAS
regulation once they were notified of the violations. All companies pulled
their commercials and complied with the regulations, but they were still
fined. We believe that the fines were excessive action and unneeded.
Conclusion
The court should disallow the fines assessed to our clients and revoke them completely, thus voided
any liability that the companies had.
Respectfully submitted,
13. Joshua G. A. Knutson
1102 2nd St. S Apt. 210
Casselton, ND 58012
Lead Counsel, Counsel for NBCUniversal Media, LLC
Stephanie K. Storslee
2024 Harbor Dr.
Bismarck, ND 58504
Counsel for NBCUniversal Media, LLC
Susan E. Margrave
606 W Oak Ave
El Segundo, CA 90245
Counsel for Viacom Inc.
Peter C. Odney
810 Iowa Ave W
St. Paul, MN 55117
Counsel for ESPN Inc.
Nolan A. Skowronek
1160 E Bruce Ave
Gilbert, AZ 85234
CounselforTurner Broadcasting
SystemInc.
