Tech Law Journal Daily E-Mail Alert
November 24, 2008, Alert No. 1,862.
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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 opinion [102 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 both."

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 TLJ Daily 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 TLJ Daily 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 codified at 5 U.S.C. § 706. It reasoned that the FCC departed from its prior policy excepting fleeting broadcast material from the scope of actionable indecency.

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 review.

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 its divided opinion [53 pages in PDF] on June 4, 2007. See, story 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 Court docket.

Tate Discusses Advertising Issues

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 NOI/NPRM [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 sophisticated."

Finally, she addressed protecting children online.

People and Appointments

11/19. House Republicans elected leaders for the 111th Congress. The Republican Leader will again be Rep. John Boehner (R-OH). The Republican Whip will be Rep. Eric Cantor (R-VA). The Conference Chairman will be Rep. Mike Pence (R-IN). The Policy Committee Chairman will be Rep. Thaddeus McCotter (R-MI). The Conference Vice-Chair will be Rep. Cathy Rodgers (R-WA). The Conference Secretary will be Rep. John Carter (R-TX). The National Republican Campaign Committee Chairman will be Rep. Pete Sessions (R-TX). See, Rep. Boehner's release.

Senate Passes Bill to Allow Select Analog Broadcasts for 30 Days After DTV Transition

11/20. The Senate amended and passed S 3663 [ LOC | 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".

Sen. Jay RockefellerSen. 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 communications."

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 (SAC).

On September 23, 2008, Rep. Lois Capps (D-CA), Rep. Rick Boucher (D-VA), and Rep. Hilda Solis (D-CA) introduced HR 7013 [LOC | WW], 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 opinion in 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.

The American 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 docket for this case.

On June 30, 2008, the U.S. Court of Appeals (11thCir) issued its 7-5 en banc opinion [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 TLJ Daily E-Mail Alert No. 1,595, June 14, 2007, and "11th Circuit Issues En Banc Opinion in Greenberg v. National Geographic" in TLJ Daily 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 TLJ Daily E-Mail Alert No. 216, June 26, 2001. And see, story 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), North 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.

More News

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 amended 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.

In This Issue

This issue contains the following items:
 • FCC Files Petition for Writ of Certiorari in Broadcast Breast Case
 • 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

Monday, November 24

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. See, original notice in the Federal Register, October 14, 2008, Vol. 73, No. 199, at Pages 60658-60662, and notice of 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.

Tuesday, November 25

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.

Wednesday, November 26

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, notice in 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. 04-36.

Thursday, November 27

Thanksgiving Day. See, Office of Personnel Management's (OPM) list of 2008 federal holidays.

Friday, November 28

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.

Sunday, November 30

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its SP 800-82 [156 pages in PDF] titled "DRAFT Guide to Industrial Control Systems (ICS) Security".

Monday, December 1

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 97-21.

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, notice in the Federal Register, October 2, 2008, Vol. 73, No. 192, at Pages 57337-57338.

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, notice in the Federal Register, October 1, 2008, Vol. 73, No. 191, at Pages 56964-56970.

Deadline to submit comments to the Department of Homeland Security (DHS) regarding revising the National 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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