|FCC Files Petition
for Writ of Certiorari in Broadcast Breast Case
11/18. The Office of the Solicitor
General (OSG) filed, on behalf of the Federal Communications
Commission (FCC), a
petition for writ of certiorari [218 pages in PDF] with the Supreme
Court seeking review of the judgment of the
U.S. Court of Appeals (3rdCir)
in CBS v. FCC, a case regarding a fine of a broadcaster.
On July 21, 2008, the Court of Appeals issued its
pages in PDF] overturning the FCC's fine of CBS for broadcasting a fleeting and
unscripted view of a breast during a halftime show for a football game.
On March 15, 2006, the FCC released a
forfeiture order [30 pages in PDF] that fined CBS $550,000. That order is
FCC 06-19. See, story titled "FCC Releases Indecency Orders" in
TLJ Daily E-Mail
Alert No. 1,332, March 20, 2006.
The FCC concluded that CBS violated
18 U.S.C. § 1464 which provides, in full, that "Whoever utters
any obscene, indecent, or profane language by means of radio communication
shall be fined under this title or imprisoned not more than two years, or
On April 14, 2006, CBS filed with the FCC a Petition for Reconsideration
of Forfeiture Order. See, story titled "CBS Challenges FCC's
Indecency Actions" in
E-Mail Alert No. 1,351, April 17, 2006.
On May 31, 2006, the FCC released its
Order on Reconsideration [18 pages in PDF] denying that petition.
That order is FCC 06-68. See, story titled "FCC Denies Petition for
Reconsideration of CBS's Breast Broadcast Fine" in
E-Mail Alert No. 1,382, June 1, 2008.
CBS then filed a petition for review of these two FCC orders with the
Court of Appeals. The Court of Appeals vacated the FCC's two orders and
remanded for further proceedings. The Court of Appeals held that the
FCC's fine was arbitrary and capricious in violation of the scope of
review provisions of Administrative Procedure Act (APA), which are
5 U.S.C. § 706. It reasoned that the FCC departed from its prior
policy excepting fleeting broadcast material from the scope of actionable
The just filed petition argues that the Court of Appeals erred. It
argues that a fleeting images exemption "has never existed",
and that the Court of Appeals conducted what amounted to a de novo
There is a similar case pending before the Supreme Court, FCC v.
Fox Television Stations. The Supreme Court has heard oral argument,
but not announced its decision, in that case.
The just filed petition for writ of certiorari states that "In
light of the substantial overlap between the two cases, the petition for a writ
of certiorari should be held pending the disposition of Fox. At that time, the
Court can determine whether to grant certiorari, vacate the decision below, and
remand for further consideration in light of its decision in Fox, or instead to
grant certiorari and proceed with plenary review."
This case is FCC and USA v. CBS Corporation, et al., Supreme Court of
the U.S., a petition for writ of certiorari to the U.S. Court of Appeals for the
3rd Circuit, App. Ct. No. 06-3575. The Court of Appeals heard a petition for
review of two final orders of the FCC.
FCC v. Fox Television Stations. On November 6, 2006, the FCC issued an
Order [36 pages
in PDF] on remand regarding complaints that four broadcast television programs
contained indecent and/or profane material. The Order concluded, among other
things, that comments made by Nicole Richie during "The 2003 Billboard Music
Awards" and by Cheryl LaPiere during the "The 2002 Billboard Music Awards" were
indecent and profane.
See also, stories titled "FCC Releases Indecency Orders" in
TLJ Daily E-Mail
Alert No. 1,332, March 20, 2006, and "FCC Releases Order on Remand Regarding
Broadcast Indecency" in
TLJ Daily E-Mail
Alert No. 1,484, November 7, 2006. This order is FCC 06-166.
Fox, CBS, and ABC filed petitions for review of the FCC's order. The
U.S. Court of Appeals (2ndCir) issued
opinion [53 pages in PDF] on June 4, 2007. See,
titled "2nd Circuit Vacates and Remands FCC Profanity Order" in
TLJ Daily E-Mail
Alert No. 1,590, June 4, 2007.
The OSG/FCC filed a
petition for writ of certiorari on November 1, 2007. The Supreme Court
granted certiorari on March 17, 2008. See, story titled "Supreme Court Grants
Certiorari in FCC Fleeting Expletives Case" in
TLJ Daily E-Mail
Alert No. 1,732, March 18, 2008. It heard oral argument on November 4, 2008.
That case is FCC, et al. v. Fox Television Stations, Inc., et al.,
Supreme Court of the U.S., Sup. Ct. No. 07-582, a petition for writ of
certiorari to the U.S. Court of Appeals for the 2nd Circuit. See also, Supreme
11/21. Federal Communications Commission (FCC) Commissioner
Deborah Tate gave a
speech at a Promotion Marketing
Association (PMA) conference in Chicago, Illinois.
She discussed advertising by product placement in video programming.
The FCC adopted on June 13, 2008, and released on June 26, 2008, a Notice
of Inquiry and Notice of Proposed Rulemaking on this topic. This
[55 pages in PDF] is FCC 08-155 in MB Docket No. 08-90. Tate said, "I suspect
that it is unlikely we will vote on the Notice this year."
She also discussed mobile advertising, behavioral advertising, and privacy.
She said that "Like most consumers, I welcome the idea of receiving ads only for
those products I am most interested in. However, I do not welcome the idea of
someone tracking my every move, purchase, website I visit, or my mobile location
She continued that "As a legal matter you must balance an individual's right to
privacy against corporate America’s right to commercial speech. I expect that
the next few years will see a great deal of effort -- from industry, Congress --
even state the legislatures -- and then the courts, spent crafting policies to
deal with this confluence of ideals as technology becomes more and more
Finally, she addressed protecting children online.
|Senate Passes Bill to Allow Select
Analog Broadcasts for 30 Days After DTV Transition
11/20. The Senate amended and passed S 3663
WW], the "Short-term
Analog Flash and Emergency Readiness Act" by unanimous consent. See,
Congressional Record, November 20, 2008, at pages S10769-70.
Sen. Jay Rockefeller
(D-WV) introduced this bill on October 1, 2008.
It merely provides an extension of authority to make analog television
broadcasts for 30 days beyond the transition date of February 17, 2009, for
"public safety information and digital transition information".
Rockefeller (at right) stated on the floor that "I firmly
believe that our Nation is not ready to make this transition without
substantially more involvement from every level of government, the entire
communications industry, and willing community organizations across America. At
present, most experts agree that the transition will unleash a massive amount of
consumer confusion. And when people are cut off from their televisions, it is
not just a matter of convenience, but it is a matter of public safety. We simply
cannot stand by and let people lose access to emergency alerts and public safety
He explained that "This piece of legislation will help make sure those
consumers who fail to make the DTV transition by February 17, 2009 are not left
without access to emergency information. This bill will also allow those
consumers to understand what steps they need to take in order to restore their
television signals by allowing an analog signal to continue to be broadcast in
each regional market for an additional 30 days past February 17th."
Sen. Rockefeller will be the Chairman of the
Senate Commerce Committee (SCC)
in the 111th Congress. Sen. Daniel Inouye (D-HI), who
has been the Chairman for the
110th Congress, will become Chairman of the
Senate Appropriations Committee
On September 23, 2008, Rep. Lois Capps (D-CA),
Rep. Rick Boucher (D-VA), and
Rep. Hilda Solis (D-CA) introduced HR 7013
also titled the "Short-term Analog Flash and Emergency Readiness
Act". The House has not yet passed either HR 7013 or S 3663.
|Update on Greenberg v.
National Geographic Society
11/24. Jerry Greenberg filed a petition for writ of certiorari with the
Supreme Court on September 29, 2008, in Greenberg v. National Geographic
Society, a case involving
17 U.S.C. § 201(c), the Supreme Court's
New York Times v. Tasini, and the rights of free lance creators who have
retained the copyrights in their works.
This case, like the Tasini case, involves the rights of independent creators, who licensed
their works to publishers for a particular publication, but retained the
copyrights in their works, when the publishers republish their works in a
subsequent publications, such as electronic databases, or CD versions. Creators,
such as Greenberg, seek compensation for republication of their copyrighted
works. Publishers, such as the National Geographic Society (NGS), do not want to
compensate these creators.
Society of Media Photographers (ASMP), and other photography and
graphics groups, filed an
amicus curiae brief [PDF] on November 3, 2008.
The Supreme Court has scheduled a conference for Friday, December 5,
2008, at which it may decide whether or not to grant or deny certiorari.
See, Supreme Court
calendar [PDF] for the October Term 2008, and
On June 30, 2008, the U.S. Court of
Appeals (11thCir) issued its 7-5 en banc
[85 pages in PDF]. Like the three judge panel, the en banc panel reversed the
judgment of the District Court. The Court of Appeals opinions were victories for
the NGS and publishers generally, and a defeat for independent photographers,
artists and authors.
See, stories titled "11th Circuit Rules in Collective Work
Copyright Case" in
E-Mail Alert No. 1,595, June 14, 2007, and "11th Circuit Issues
En Banc Opinion in Greenberg v. National Geographic" in
E-Mail Alert No. 1,789, July 7, 2008.
The Tasini opinion is also reported at 533 U.S. 483. See also, story
titled "Supreme Court Rules for Authors in NYT v. Tasini" in
E-Mail Alert No. 216, June 26, 2001. And see,
titled "Supreme Court Grants Cert in NYT v. Tasini", Tech Law
Journal, November 7, 2000.
In the present case, Jerry Greenberg is an independent photographer whose
photographs were published in the January 1962, February 1968, May 1971 and July
1990 issues of National Geographic
magazine. But, Greenberg retained the copyrights in his photographs. In
1997, the NGS produced a 30 disc CDROM product titled "The Complete National
Geographic" or CNG. It reproduced each monthly issue of the print magazine from
1888 through 1996, including Greenberg's pictures. The NGS did not obtain
permission from Greenberg.
Greenberg filed a complaint in the
U.S. District Court (SDFl)
against the NGS and others alleging copyright infringement. The defendants
moved to dismiss on the ground that the NGS had a privilege to publish a
revision of the originally licensed works under 17 U.S.C. § 201(c).
After an earlier trip to the Court of Appeals, the District Court
granted judgment to Greenberg. The Court of Appeals then reversed. The
Court of Appeals en banc also reversed. Greenberg then filed the pending
petition for writ of certiorari.
The ASMP amicus brief argues that "The limited privilege granted
to publishers in Section 201(c) of the Copyright Act, as this Court recognized
in New York Times Co. v. Tasini, 533 U.S. 483 (2001), was never intended to
divest freelance creators of their rights in new collections of previously
published works. Yet the decision below threatens, once again, to convert
Section 201(c) of the Copyright Act into a weapon to be used against freelance
creators for the benefit of publishers. That was precisely what this Court
sought to avoid in its Tasini decision, and unfortunately, the decision below
signals that this battle is not yet over."
It also states that "Freelance creators mistakenly believed that
this Court’s decision seven years ago in Tasini would put an end to the
publishers' pernicious manipulation of Section 201(c) to deprive them of fair
compensation for the republication of their works in new, digital compendia. But
the decision of the Eleventh Circuit in this case, following on the footsteps of
the Second Circuit’s similar decision in Faulkner v. National Geographic
Enterprises, 409 F.3d 26 (2d Cir. 2005), proves otherwise."
The amicus brief also discusses the effects of new electronic media. "The demise of many magazines and other periodicals, the
declining circulation of newspapers and the transition to new business models
based upon electronic media have drastically reduced the opportunities for
freelancers to generate income from their published works. The new
business models include online, electronic archives that are becoming almost
commonplace. Many large publishers, including The New York Times, Sports
Illustrated, Time Magazine, People Magazine, Entertainment Weekly, and The
Atlantic have online archives available, whereby users can search and retrieve
the individual articles and photographs of the original publications.
Thus, when the works of freelance creators do get published, the digital revolution
has destroyed what used to be a thriving secondary market for their
contributions to collective works." (Footnotes omitted.)
It further argues that if the 11th Circuit is not reversed, not only
would free lance creators be harmed, but also the public "that would
never see or enjoy the future works of existing and future freelancers
whose careers were destroyed or curtailed by publishers unwilling to pay
any compensation for the electronic exploitation of
the creators’ previously published works."
The amici are the ASMP, Graphic Artists Guild (GAG),
American Nature Photography Association (NANPA),
Stock Artist Alliance (SAA),
National Press Photographers Association (NPPA),
Advertising Photographers of
America (APA), and Picture Archive Council of America (PACA).
The NGS is represented by
Ken Starr of the Los Angeles office of
the law firm of Kirkland & Ellis. Greenberg is represented by
Pierre Bergeron of
the Cincinnati office of the law firm of Squire Sanders. The photography and
graphics amici are represented by Victor Perlman of the ASMP.
This case is Jerry Greenberg v. National Geographic Society, et al.,
Supreme Court of the U.S., Sup. Court No. 08-428, a petition for writ of
certiorari to the U.S. Court of Appeals for the 11th Circuit, App. Ct. No.
05-16964. The Court of Appeals heard an appeal from the U.S. District Court for
the Southern District of Florida, D.C. No. 97-03924-CV-AMS.
11/21. The U.S. Court of
Appeals (DCCir) issued a
revised opinion [65 pages in PDF] in FTC v. Whole Foods Market,
an administrative antitrust action involving how to define the relevant
market for the purpose of analyzing the impact of a merger upon competition. See
also, story titled "DC Circuit Reverses in FTC v. Whole Foods" in
TLJ Daily E-Mail
Alert No. 1,802, July 29, 2008. The FTC filed an
complaint [11 pages in PDF] on September 8, 2008. It issued a
scheduling order [14 pages in PDF] on September 10 that schedules the
hearing in this matter to begin on February 16, 2009. This case is FTC v.
Whole Foods Markets, Inc. et al., U.S. Court of Appeals for the District of
Columbia, App. Ct. No. 07-5276, an appeal from the U.S. District Court for the
District of Columbia, D.C. No. 07cv01021, Judge Paul Friedman presiding.
11/21. The Federal Communications Commission (FCC) adopted and released a
Public Notice [PDF] that contains the FCC's 2009 Eligible Services
List (ESL) for schools and libraries under its e-rate tax and
subsidy program, and announces that the FCC has rejected the Universal
Service Administrative Company's (USAC) proposed changes to the ESL. This
item is FCC 08-265 in CC Docket No. 02-6.
11/20. The Federal Communications Commission (FCC) adopted on November
19, 2008, and released on November 20, 2008, an
order that grants in part, and denies in part, UltraVision Security
Systems' October 6, 2006, request for a waiver of the FCC's ultrawideband
(UWB) rules to allow limited marketing of UltraVision's UltraSensor surveillance
systems. These systems place small radar devices underground to track the
movements of persons and vehicles above ground. These systems would operate in
spectrum bands below 960
MHz, which the FCC's rules do not permit. This order permits UltraVision systems
to operate in the 80-600 MHz frequency band, but imposes operational and
technical conditions. This item is FCC 08-263 in ET Docket No. 06-195.
This issue contains the following items:
• FCC Files Petition for Writ of Certiorari in Broadcast Breast
• Update on Greenberg v. National Geographic Society
• Senate Passes Bill to Allow Select
Analog Broadcasts for 30 Days After DTV Transition
• Tate Discusses Advertising Issues
• People and Appointments (House Republicans select leaders)
• More News
The Senate will meet in pro forma session.
The House will not meet. It
will next meet on the week of December 8, 2008.
12:15 - 1:30 PM. The
Federal Communications Bar
Association's (FCBA) Intellectual Property Practice Committee will
host a brown bag lunch titled "The Copyright Royalty Board:
Recent Decisions". The speakers will be Bruce Joseph (Wiley
Rein), David Oxenford (Davis Wright Tremaine), Robert Garrett (Arnold
& Porter), and Tom Perrelli (Jenner & Block). Location: Dow
Lohnes, 1200 New Hampshire Ave., NW.
Extended deadline to submit comments to the
Copyright Office (CO) in response
to its request for comments regarding its proposal to raise fees for
registration of claims, special services and Licensing Division services.
notice in the Federal Register, October 14, 2008, Vol. 73, No. 199,
at Pages 60658-60662, and
extension in the Federal Register, October 31, 2008, Vol. 73, No. 212, at
Pages 64905-64906. See also, story titled "Copyright Office Proposes
to Raise Registration Fees" in TLJ Daily E-Mail Alert No. 1,843,
October 15, 2008.
10:30 AM. The
Heritage Foundation will host an
event titled "Taiwan, Democracy, and the Rule of Law".
The speakers will be Ching Jyh Shieh (Former Deputy Minister of the
National Science Council, Republic of China) and Stephen Yates
(Heritage). Location: Heritage, 214 Massachusetts Ave., NE.
Deadline to submit initial comments to the
Federal Communications Commission (FCC) in response to the FNPRM portion
of its November 5, 2008, Order on Remand regarding universal service, IP enabled
services, intercarrier compensation, and other topics. See,
the Federal Register, November 12, 2008, Vol. 73, No. 219, at Pages
66821-66830. The FCC adopted and released this
Order on Remand and Report and Order and Further Notice of Proposed
Rulemaking [430 pages in PDF] on November 5. FCC Chairman Kevin Martin offered this explanation in his statement associated
with this item: "Today
we tell the U.S. Court of Appeals for the D.C. Circuit and the Federal-State
Joint Board on Universal Service that, after years of deliberation, we are
still unready to move forward with comprehensive reform of intercarrier
compensation and universal service. Instead, we issue another open-ended
Further Notice of Proposed Rulemaking on a variety of approaches for
comprehensive reform, and my colleagues promise to act on it by December 18."
This item is FCC 08-262 in WC Docket No. 05-337, CC Docket No. 96-45, and WC
Docket No. 03-109, WC Docket No. 06-122, and CC Docket No. 99-200, CC Docket
No. 96-98, and CC Docket No. 01-92, CC Docket No. 99-68, and WC Docket No.
Thanksgiving Day. See, Office of Personnel Management's (OPM)
list of 2008 federal holidays.
Deadline to submit comments to the U.S. Department
of Agriculture's (USDA) Rural Utilities
Service (RUS) regarding its proposed rules regarding standards and
specifications for timber products acceptable for use by Rural Development
Utilities Programs' electric and telecommunications borrowers. See,
notice in the
Federal Register, September 29, 2008, Vol. 73, No. 189, at Pages 56513-56528.
Deadline to submit nominations to the Federal
Communications Commission's (FCC)
Wireline Competition Bureau (WCB) for six different positions on the
Board of Directors of the Universal
Service Administrative Company (USAC). See, FCC
notice [PDF]. This item is DA 08-2487 in CC Docket Nos. 96-45 and
Deadline to submit comments to the
U.S. Patent and Trademark Office
(USPTO) regarding the process by which it awards the National Medal
of Technology and Innovation. See,
the Federal Register, October 2, 2008, Vol. 73, No. 192, at Pages
Deadline to submit comments to the Department
of Commerce's (DOC) Bureau of Industry
and Security (BIS) regarding its new rules pertaining to foreign
made items that incorporate controlled U.S. origin items. See,
the Federal Register, October 1, 2008, Vol. 73, No. 191, at Pages
Deadline to submit comments to the
Department of Homeland Security (DHS)
regarding revising the
Infrastructure Protection Plan (NIPP). See,
notice in the
Federal Register, November 14, 2008, Vol. 73, No. 221, at Pages 67532-67534.
The DHS seeks comments on, among other things, "Publishing the Sector Specific
Plans (SSPs)". There are SSPs titled
Communications [132 pages and 3MB in PDF] and
Information Technology [11 MB in PDF].
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