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FCC & USA v. Fox, et al., No. 10-1293 (Sup. Ct.)

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Released: November 9, 2011
No. 10-1293
Supreme Court of the United States

FEDERAL COMMUNICATIONS COMMISSION, ET AL.,
Petitioners,
v.
FOX TELEVISION STATIONS, INC., ET AL.,
Respondents.

On Writ of Certiorari to the
United States Court of Appeals for the Second Circuit

BRIEF OF AMICI CURIAE

AMERICAN ACADEMY

OF PEDIATRICS, AMERICAN ACADEMY OF

CHILD AND ADOLESCENT PSYCHIATRY,

BENTON FOUNDATION, CHILDREN NOW, AND

UNITED CHURCH OF CHRIST OFFICE OF

COMMUNICATION, INC.

IN SUPPORT OF AFFIRMANCE


Angela J. Campbell
Counsel of Record
Blake E. Reid
Institute for Public
Representation
Georgetown Law
600 New Jersey Ave. NW
Washington, DC 20001
202.662.9535
ipr-efiling@law.georgetown.edu


i

TABLE OF CONTENTS

TABLE OF CONTENTS.............................................. i  
TABLE OF CITED AUTHORITIES ......................... iii  
INTEREST OF AMICI CURIAE ............................... 1  
SUMMARY OF ARGUMENT .................................... 3  
ARGUMENT ............................................................... 4  
I.
The Court should affirm the court of appeals’
holding that the FCC’s indecency policy is
unconstitutionally vague. .................................. 4  
II.
The Court should not disturb Red Lion or
Pacifica. .............................................................. 5  
A.
Disturbing Red Lion could endanger
laws and regulations designed to
benefit children.......................................... 5  
1.
The CTA and the rules
implementing it are premised on
Red Lion. ........................................... 6  
2.
The CTA and underlying FCC
rules have benefited children......... 10  
3.
Disturbing Red Lion may result in
constitutional challenges to the
CTA and FCC rules that benefit
children. .......................................... 13  
B.
Disturbing Pacifica is unnecessary and
could harm children. ............................... 15  
III. The V-Chip does not provide an effective less-
restrictive alternative means for protecting
children from inappropriate content............... 16  


ii
A.
The V-Chip and underlying TV ratings
were intended to provide a tool for
parents to protect their children from
indecent broadcast content. .................... 17  
B.
In practice, the V-Chip has not provided
parents with an effective tool to protect
their children. .......................................... 20  
1.
Despite significant promotional
efforts, many parents remain
unaware of or unable to use the V-
Chip and/or do not know what the
underlying ratings mean. ............... 23  
2.
The V-Chip’s underlying ratings
are neither accurately nor
consistently applied. ....................... 24  
CONCLUSION ......................................................... 28  


iii

TABLE OF CITED AUTHORITIES

Cases

Brown v. Entm’t Merchants Ass’n, 131 S. Ct. 2729
(2011)............................................................... 13, 26
FCC v. Pacifica Foundation, 438 U.S. 726 (1978)
........................................................................passim
FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800
(2009)..................................................................... 14
Fox Television Stations, Inc. v. FCC, 613 F.3d 317 (2d
Cir. 2010), cert. granted, 131 S. Ct. 3065 (2011) ... 5
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367
(1969)..............................................................passim
Reno v. ACLU, 521 U.S. 844 (1997)......................... 16
U.S. v. Playboy Entertainment Group, 529 U.S. 803
(2000)............................................................... 23, 24

Statutes and Legislative
Materials

141 CONG. REC. H8481-01 (1995) (statement of Rep.
Edward Markey)................................................... 19
141 CONG. REC. S8225-01 (1995) (letter introduced by
Sen. Kent Conrad) ................................................ 19
Child Safe Viewing Act of 2007, Pub. L. No. 110-452
............................................................................... 20
Children’s Television Act of 1990, Pub. L. No. 101-
437, codified at 47 U.S.C. §§ 303a-303b (2006)
........................................................................passim
H.R. REP. NO. 101-385 (1989) ............................... 9, 12
Hearing on Media Ratings Before the S. Comm. On
Gov. Affairs, 107th Cong. (2001) (Statement of Dale
Kunkel).................................................................. 27
S. REP. NO. 101-227 (1989) ................................... 9, 12


iv
S. REP. NO. 110-268 (2008)........................................ 20
Telecommunications Act of 1996, Pub. L. No. 104-
104, 100 Stat. 56 (codified in scattered sections of
47 U.S.C.) ........................................................ 17, 23

Administrative Regulations, Decisions, and
Materials

47 C.F.R. § 73.3999 ................................................... 25
Children Now, Comment to Industry Proposal for
Rating Video Programming, FCC
Docket No. 97-55 (Apr. 8, 1997) ............... 18, 19, 20
Children’s Television Obligations of Digital
Television Broadcasters, 19 FCC Rcd. 22943
(2004)....................................................................... 9
Children’s Television Obligations of Digital
Television Broadcasters, 21 FCC Rcd. 11065 (2006)
............................................................................... 10
Children’s Television Report and Policy Statement,
50 F.C.C. 2d 1 (1974), aff’d sub nom. Action for
Children’s Television v. FCC
, 564 F.2d 458 (D.C.
Cir 1977) ................................................................. 7
FCC, THREE YEAR REVIEW OF THE IMPLEMENTATION
OF THE CHILDREN’S TELEVISION RULES AND
GUIDELINES 1997-1999 1 (2001)........................... 10
Implementation of Section 551, 13 FCC Rcd. 8232
(1998)................................................... 17, 18, 19, 27
Implementation of the Child Safe Viewing Act, 24
FCC Rcd. 11413 (2009) ....................... 20, 21, 24, 27
Policies and Rules Concerning Children’s Television
Programming, 11 FCC Rcd. 10660
(1996)..................................................... 9, 12, 13, 14



v

Other Materials

ALETHA C. HUSTON ET. AL., BIG WORLD, SMALL
SCREEN (1992)....................................................... 12
AMY B. JORDAN, IS THE THREE-HOUR RULE LIVING UP
TO ITS POTENTIAL? (2000).......................................11
AMY JORDAN & EMORY WOODARD, PARENTS’ USE OF
THE V-CHIP TO SUPERVISE CHILDREN’S TELEVISION
USE 3 (2003).................................................... 21, 22
ARBITRON, RADIO TODAY 2011: HOW AMERICA LISTENS
TO RADIO (2011) ..................................................... 25
BARBARA J. WILSON, ET AL.,
EDUCATIONALLY/INSUFFICIENT? AN ANALYSIS OF
THE AVAILABILITY & EDUCATIONAL QUANTITY OF
CHILDREN’S E/I PROGRAMMING (2008)...................11
Barbara K. Kaye & Barry S. Sapolsky, Offensive
Language in Prime-Time Television: Four Years
After Television Age and Content Ratings
, 4
J.BROAD. & ELEC. MEDIA 554 (2004).................... 25
CABLE PUTS YOU IN CONTROL, http://controlyourtv.org
............................................................................... 24
Children’s Television Act, FCC.GOV ...................... 7, 8
COMMON SENSE MEDIA, ZERO TO EIGHT: CHILDREN’S
MEDIA USE IN AMERICA (2011) ........................ 15, 16
CORPORATION FOR PUBLIC BROADCASTING, FINDINGS
FROM READY TO LEARN: 2005-2010 5 (2011)....11, 12
DALE KUNKEL ET. AL., Assessing the Validity of V-
Chip Rating Judgments: The Labeling of High-
Risk Programs
, in THE ALPHABET SOUP OF
TELEVISION PROGRAM RATINGS (Bradley Greenberg
ed., 2001) ............................................................... 25


vi
DALE KUNKEL & JESSICA CASTONGUAY, Children in
Advertising: Content, Comprehension, and
Consequences
, in HANDBOOK OF CHILDREN AND
THE MEDIA (DOROTHY G. SINGER & JEROME L.
SINGER eds., 2011) ................................................ 15
Douglas A. Gentile, et al. Parents Evaluation of
Media Ratings a Decade After the Television
Ratings Were Introduced
, 128 Pediatrics 36 (2011)
............................................................. 22, 23, 25, 26
ESRB Survey: Parental Awareness, Use &
Satisfaction, ESRB.ORG ....................................... 21
Frequently Asked Questions, ESRB.ORG................ 26
KAISER FAMILY FOUNDATION, PARENTS, CHILDREN,
AND MEDIA: A KAISER FAMILY FOUNDATION SURVEY
(2007)............................................................... 21, 22
NBC Television Network, COMCAST.COM ............26, 27
Phil Kurz, 46 Million Americans Still Watch
TV Exclusively over the Air, says Report,
BROADCASTENGINERING.COM................................ 15
Reasons for Movie Ratings: The Classification and
Rating Administration, FILMRATINGS.COM......... 26
U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-11-659,
CHILDREN’S TELEVISION ACT: FCC COULD IMPROVE
EFFORTS TO OVERSEE ENFORCEMENT AND PROVIDE
PUBLIC INFORMATION (2011) ............................10, 11
VICTORIA RIDEOUT, PARENTS MEDIA AND PUBLIC
POLICY: A KAISER FAMILY FOUNDATION SURVEY
(2004)..................................................................... 26
William Clinton, President of the United States,
1996 State of the Union Address (Jan. 22,
1996)...................................................................... 19



1

INTEREST OF AMICI CURIAE

1
Amici are organizations concerned with the
well-being of children. They have long recognized
that media can have both beneficial and harmful ef-
fects on children. Amici advocate before Congress
and the FCC for policies designed to ensure that
children have access to high quality educational pro-
gramming specifically designed for children and to
limit children’s exposure to programming with inap-
propriate violence, sexuality, and commercialism.
The American Academy of Pediatrics (“AAP”) is
an organization of 60,000 pediatricians committed to
the attainment of optimal physical, mental, and so-
cial health and well-being for all infants, children,
adolescents, and young adults. The AAP offers re-
sources to help educate parents about the effects of
media on their children and give them ideas for
maintaining a healthy approach to media for their
children.
The American Academy of Child and Adolescent
Psychiatry (“AACAP”) comprises over 7,500 child
and adolescent psychiatrists and other physicians
dedicated to improving the quality of life for chil-
dren, adolescents, and families affected by mental,
behavioral, or developmental disorders. AACAP sup-
ports the development of dedicated children’s televi-

1 All parties to this case have filed letters consenting to the fil-
ing of amicus curiae briefs in support of either party or of nei-
ther party. No counsel for a party authored this brief, either in
whole or in part, and no party, counsel for a party, or any other
person other than amici curiae or their members or counsel
made a monetary contribution intended to fund the preparation
or submission of this brief.


2
sion programming and tools to help parents protect
their children from the negative mental health ef-
fects of viewing inappropriate content.
The Benton Foundation is a nonprofit organiza-
tion dedicated to promoting communication in the
public interest.2 It pursues this mission by seeking
policy solutions that support the values of access, di-
versity and equity, and by demonstrating the value
of media and telecommunications for improving the
quality of life for all.
Children Now is a national organization for
people who care about children and want to ensure
that they are the top public priority. In particular,
Children Now works to ensure that broadcast televi-
sion serves children’s interests by maximizing its
educational value and minimizing its negative
health effects.
The Office of Communication, Inc. of the United
Church of Christ, (“OC, Inc.”), is the media justice
arm of the United Church of Christ, a faith commu-
nity rooted in justice with 5,700 local congregations
across the United States. OC, Inc. works to promote
public interests in the media, especially for people of
color, women, and children.

2 These comments reflect the institutional view of the Founda-
tion and, unless obvious from the text, are not intended to re-
flect the views of individual Foundation officers, directors, or
advisors.


3

SUMMARY OF ARGUMENT

Amici agree with respondents that the FCC’s
current indecency enforcement regime is unconstitu-
tionally vague. The regime leaves parents without a
clear idea of what their children might see or hear
while watching broadcast television. Accordingly, the
Court should affirm the court of appeals on vague-
ness grounds.
The Court need not and should not go beyond
vagueness to resolve this case. In particular, there is
no need for the Court to revisit the long-standing
precedents of Red Lion Broadcasting Co. v. FCC, 395
U.S. 367 (1969) and FCC v. Pacifica Foundation, 438
U.S. 726 (1978).
Disturbing Red Lion could endanger the Chil-
dren’s Television Act of 1990 (“CTA”). The CTA and
the FCC rules implementing it have succeeded in in-
creasing the quantity of educational programming
for children and limiting advertising on children’s
programs. They also prevent advertisers from taking
unfair advantage of children’s immaturity. Experi-
ence with deregulation indicates that in the absence
of such regulations, market forces provide insuffi-
cient incentives for broadcasters to carry children’s
educational programming or limit harmful adver-
tisements during children’s programming.
The CTA and underlying FCC rules are prem-
ised on Red Lion’s holding that conditioning the
award of broadcast licenses on serving the public in-
terest is consistent with the First Amendment. Any
action casting doubt on Red Lion could lead to chal-
lenges to the CTA and related FCC rules. Although
substantial research demonstrates the educational


4
value of children’s programming and the harms as-
sociated with children viewing inappropriate con-
tent, it is uncertain whether this research would sat-
isfy strict scrutiny.
Amici further agree with respondents that the
FCC’s indecency enforcement in the present cases is
not justified under Pacifica. But there is no need to
revisit Pacifica because the premises underlying
Pacifica—that broadcast television is pervasive and
uniquely accessible to children—continue to be valid.
Finally, should the Court choose to evaluate the
FCC’s indecency regime under a heightened level of
scrutiny, it should reject the proposition that the V-
Chip and underlying ratings provide an equally ef-
fective, less-restrictive alternative to government
regulation. Despite the availability of V-Chip func-
tionality in most television sets and strong promo-
tional and educational efforts, very few parents are
aware of the V-Chip’s existence, know how to use it,
or understand the ratings system. Moreover, the
impossibility of accurately and consistently rating
the vast number of television programs makes the
system unreliable and thus ineffective as an alterna-
tive to government regulation.

ARGUMENT

I.

The Court should affirm the court of ap-
peals’ holding that the FCC’s indecency
policy is unconstitutionally vague.

Amici agree with respondents ABC, Inc., et al.,
(“ABC, Inc.”) that the Commission has not articu-
lated a policy that is “sufficiently clear and consis-
tent to place broadcasters on notice of what material
will be deemed indecent.” ABC, Inc. Br. at 14. The


5
FCC’s indecency policy also fails to provide parents
with a clear idea of what they can expect their chil-
dren to see or hear while watching broadcast televi-
sion programming. Affirming the court of appeals’
finding of vagueness likely will result in more re-
strained FCC enforcement of the indecency prohibi-
tion or prompt the FCC to adopt new standards
through a rulemaking.3 Either result would afford
parents greater certainty and the ability to make
reasonable viewing choices for their children than
under the FCC’s current enforcement policy.

II. The Court should not disturb Red Lion


or Pacifica.
Amici further agree with respondents Center
for Creative Voices in Media, et al. (“CCV”) that the
Court need not and should not revisit the long-
standing precedents set in Red Lion Broadcasting
Co. v. FCC
, 395 U.S. 367 (1969) and FCC v. Pacifica
Foundation
, 438 U.S. 726 (1978). CCV Br. at 6-8. Af-
firming the lower court on vagueness grounds would
eliminate the need to revisit these cases.

A.

Disturbing Red Lion

could endanger
laws and regulations designed to
benefit children.

Amici agree with respondents Fox Television
Stations, Inc. (“Fox”) and CCV that the scarcity doc-
trine has never been the basis for indecency en-
forcement. Fox Br. at 36; CCV Br. at 9, 22-28. Accord-
ingly, not only is revisiting Red Lion unnecessary,
doing so could endanger many FCC policies premised

3 See Fox Television Stations, Inc. v. FCC, 613 F.3d 317, 331 (2d
Cir. 2010), cert. granted, 131 S. Ct. 3065 (2011).


6
on Red Lion. CCV Br. at 28-37. Of particular concern
to amici is that disturbing Red Lion could serve as
an invitation to challenge the Children’s Television
Act of 1990 (“CTA”), which requires television sta-
tions to provide educational programming for chil-
dren and limit the amount and type of advertising
during children’s programs.
1.

The CTA and the rules imple-
menting it are premised on Red
Lion

.
In Red Lion, the Court unanimously upheld the
constitutionality of the FCC’s authority to license
broadcast stations. Because the Court viewed licens-
ing as essential to the productive use of the spec-
trum, it concluded that granting licenses to some
while denying licenses to others did not violate the
First Amendment. 395 U.S. at 388-89. The Court
reasoned that nothing in the First Amendment pre-
vented the government from requiring a licensee to
“to conduct himself as a proxy or fiduciary with obli-
gations” to present the views of others in the com-
munity. Id. at 389. It added that:
[T]he people as a whole retain their inter-
est in free speech by radio and their collec-
tive right to have the medium function
consistently with the ends and purposes of
the First Amendment. It is the right of the
viewers and listeners, not the right of the
broadcasters, which is paramount
. . . . It is
the right of the public to receive suitable
access to social, political, esthetic, moral,
and other ideas and experiences which is
crucial here.”


7
Id. at 390 (internal citations omitted) (emphasis
added).
Five years after Red Lion, in a 1974 policy
statement, the FCC spelled out its expectations re-
garding broadcasters’ obligations to serve children.
Children’s Television Report and Policy Statement,
50 F.C.C. 2d 1 (1974), aff’d sub nom. Action for Chil-
dren’s Television v. FCC
, 564 F.2d 458 (D.C. Cir
1977). The FCC noted that the “landmark decision in
Red Lion gave considerable support to the principle
that the FCC could properly interest itself in pro-
gram categories.” Id. at 4. It concluded that language
about the paramount First Amendment rights of the
viewers “clearly points to a wide range of program-
ming responsibilities on the part of the broadcaster”
including “a special obligation to serve children.” Id.
at 5. It also found that “because of their immaturity
and their special needs, children require program-
ming specifically designed for them.” Id.
The 1974 policy statement also set forth broad-
casters’ responsibilities in advertising to children.
Research on child development and psychology found
that children lacked the “sophistication or experience
needed to understand that advertising is not just an-
other form of informational programming.” Id. at 15.
In response, the FCC urged broadcast stations to
voluntarily limit the amount of advertising on chil-
dren’s programs, required that program and com-
mercial content be clearly separated, and prohibited
practices such as “host selling” that took unfair ad-
vantage of children. Id. at 8-18.4

4 The FCC defines host-selling as “the use of ‘program talent or
other identifiable program characteristics to deliver commer-


8
Congress codified broadcasters’ special obliga-
tion to children in the Children’s Television Act of
1990. Congress found that “it has been clearly dem-
onstrated that television can assist children to learn
important information, skills, values, and behavior,
while entertaining them and exciting their curiosity
to learn about the world around them.” Children’s
Television Act of 1990, Pub. L. No. 101-437 § 101(2)
[hereinafter CTA]. Congress further found that “as
part of their obligation to serve the public interest,
television station operators and licensees should
provide programming that serves the special needs
of children.” Id. Thus, the CTA requires the FCC to
“consider the extent to which the licensee . . . has
served the educational and informational needs of
children through the licensee’s overall programming”
when evaluating the renewal application of any
commercial or non-commercial television license. 47
U.S.C. § 303b(a)(2) (2006). The CTA also directed the
FCC to adopt rules limiting the number of minutes
of commercial time in children’s programs (whether
or not educational) on both broadcast and cable tele-
vision. § 303a(a).
When debating the CTA, both the Senate and
House Reports closely examined the constitutionality
of imposing an affirmative obligation on licensees to
serve the special needs of children. The House Re-
port concluded that requiring the FCC to consider
children’s programming when renewing licenses was
“clearly constitutional under tests established in Red

cials’ during or adjacent to children’s programming featuring
that character.” Children’s Television Act, FCC.GOV (last visited
Nov. 7, 2011), http://www.fcc.gov/guides/childrens-educational-
television.


9
Lion and subsequent cases.” H.R. REP. NO. 101-385,
at 11 (1989). Likewise, the Senate Committee con-
cluded that “it is well within the First Amendment
strictures to require the FCC to consider, during the
license renewal process, whether a television licen-
see has provided programming specifically designed
to serve the educational and informational needs of
children in the contexts of its overall programming.”
S. REP. NO. 101-227, at 16 (1989).
The FCC also relied on Red Lion in adopting
rules to implement the CTA. For example, in 1996,
the FCC adopted a processing guideline for renewing
broadcast licenses under which a broadcast station
that aired on average three hours per week of chil-
dren’s educational or informational programming
would be found to have met its obligations under the
CTA. Policies and Rules Concerning Children’s Tele-
vision Programming
, 11 FCC Rcd. 10660, 10662
(1996). In rejecting broadcasters’ arguments that
this guideline violated the First Amendment, the
FCC relied on Red Lion and subsequent cases. Id. at
10729-30.
In 2004, the FCC revised the guideline to ac-
count for the fact that when television stations tran-
sitioned from analog to digital broadcasting that
they would be able to provide additional “multicast”
channels of free video programming over existing
spectrum. The FCC amended the license renewal
processing guidelines so that DTV broadcasters that
chose to multicast would be expected to proportion-
ately increase the amount of children’s educational
programming. Children’s Television Obligations of
Digital Television Broadcasters,
19 FCC Rcd. 22943,
22950 (2004). On reconsideration, the FCC rejected


10
broadcasters’ arguments that the revised guidelines
violated the First Amendment, noting that under
Red Lion, “[i]t is well established that the broadcast
media do not enjoy the same level of First Amend-
ment protection as do other media.” 21 FCC Rcd.
11065, 11072-73 n.41 (2006).
2.

The CTA and underlying FCC
rules have benefited children.

The CTA and the regulations implementing it
have increased the amount of educational program-
ming available to children. The FCC’s review of the
processing guidelines three years after implementa-
tion found that broadcasters had increased the quan-
tity of children’s educational programming and
aired, on average, four hours per week from 1997 to
1999. FCC, THREE YEAR REVIEW OF THE IMPLEMEN-
TATION OF THE CHILDREN’S TELEVISION RULES AND
GUIDELINES 1997-1999 1 (2001), available at
http://transition.fcc.gov/mb/policy/cetv.html. A more
recent report by the Government Accountability Of-
fice found that:
The amount of core children’s program-
ming aired by commercial broadcast sta-
tions in the television markets we re-
viewed increased significantly from 1998
to 2010, with the increases ranging from
73 percent in the smallest market (Butte-
Bozeman, Montana), to 477 percent in the
largest market (New York, New York). . . .
[T]he average weekly hours aired more
than doubled for six markets. As a result,
viewers of broadcast television in these
markets have more educational and
informational core children’s programming


11
formational core children’s programming
available to them. 5
This same GAO Study found that the FCC actively
enforced the children’s advertising limits and poli-
cies.6
Independent studies confirm that increased
children’s programming benefits the long-term well-
being of children. One study by the Corporation for
Public Broadcasting found that “kids who watch
Sesame Street in preschool spend more time reading

5 U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-11-659, CHILDREN’S
TELEVISION ACT: FCC COULD IMPROVE EFFORTS TO OVERSEE
ENFORCEMENT AND PROVIDE PUBLIC INFORMATION 8 (2011)
[hereinafter “GAO Report”]. Many other studies have shown
that most broadcasters are meeting or exceeding the FCC’s
three-hour guideline. See, e.g., BARBARA J. WILSON, ET AL. EDU-
CATIONALLY/INSUFFICIENT? AN ANALYSIS OF THE AVAILABILITY &
EDUCATIONAL QUANTITY OF CHILDREN’S E/I PROGRAMMING 11-12
(2008) (analysis of a stratified sample of stations in 2007 found
that stations aired an average of 3.32 hours per week of chil-
dren’s E/I programming); AMY B. JORDAN, IS THE THREE-HOUR
RULE LIVING UP TO ITS POTENTIAL? 3 (2000) (noting that broad-
cast stations offered, on average, 3.4 hours of core education
programming per week).
6 GAO Report, supra note 5, at 15. It found that “for the last
two renewal cycles in 1996 and 2004, the FCC issued about
7,000 violations to over 600 stations, and assessed civil penal-
ties totaling almost $3 million. Most of these violations were
advertising length violations— advertisements aired during
children’s programming that exceeded 10.5 minutes per hour
on weekends or 12 minutes per hour on weekdays. The remain-
ing violations concerned other advertising problems—such as
host-selling or failure to create a clear distinction between pro-
gram content and advertising—or problems with a broadcast
station’s public inspection file—such as the station not includ-
ing all the required children’s programming documents in the
file.” Id. at 15 (citations omitted).


12
for pleasure in high school, and they obtain higher
grades in English, math, and science.” CORPORATION
FOR PUBLIC BROADCASTING, FINDINGS FROM READY TO
LEARN: 2005-2010 5 (2011). Other programs, such as
Mister Rogers’ Neighborhood, have increased the
propensity towards positive behavior and values, in-
cluding: “sympathy, task persistence, empathy, and
imaginativeness.” ALETHA C. HUSTON ET. AL., BIG
WORLD, SMALL SCREEN 65 (1992).
When the FCC deregulated television in the
1980s, stations aired less educational programming
for children and more advertising during children’s
programs. It was for this reason that Congress
passed the CTA. The Senate Report reviewed sub-
stantial evidence and concluded that “despite the
FCC’s contention that market forces should be suffi-
cient to ensure that commercial stations provide
educational and informational children’s program-
ming, the facts demonstrate otherwise.” S. Rep. No.
101-227, at 9. Similarly, the House Commerce Com-
mittee found that commercial time during children’s
broadcasting had increased in the five years since
the FCC eliminated the advertising limits and that
“total reliance on the market to hold advertising to
an acceptable level during children’s programming”
had led to increased commercialization. H.R. Rep No.
101–385, at 8-9.7

7 There is a market failure in children’s programming because
US broadcasting is largely a commercial system that relies on
advertising revenue. As the FCC found in adopting the process-
ing guideline, “small audiences with little buying power, such
as children’s educational television audiences, are unlikely to
be able to signal the intensity of their demand for such pro-
gramming in the broadcasting market.” Therefore, broadcasters


13
3.

Disturbing Red Lion

may result
in constitutional challenges to
the CTA and FCC rules that
benefit children.

If the Court were to disturb Red Lion, it could
invite constitutional challenges to the CTA or the
rules implementing it. To meet strict scrutiny, the
government would need to show that its rules are
“justified by a compelling government interest and
[are] narrowly drawn to serve that interest.” Brown
v. Entm’t Merchants Ass’n
, 131 S. Ct. 2729, 2738
(2011) (citing R.A.V. v. St. Paul, 505 U.S. 377, 395
(1992)). To do this, the government would have to
identify “an actual problem in need of solving” and
show that “the curtailment of speech must be actu-
ally necessary to the solution.” Id. at 2738. In Brown,
the Court found that the government failed to meet
this demanding standard because it lacked studies
showing that playing violent video games caused
minors to act aggressively. Id. at 2738-39.
In adopting the processing guidelines in 1996,
the FCC concluded that its rules implementing the
CTA were “constitutional under the traditional First
Amendment standard” applied to the broadcast me-
dia. It added: “But even if evaluated under a
heightened standard, our rules would pass muster
because the interest advanced is compelling and our
regulations are narrowly tailored.” Policies and
Rules Concerning Children’s Television Program-


may have to forgo potentially more profitable programming to
show children’s educational television. Policies and Rules Con-
cerning Children’s Television Programming
, 11 FCC Rcd. at
10674.


14
ming, 11 FCC Rcd. at 10732. While amici agree with
the FCC, the recent Brown decision suggests that it
is very difficult to make a satisfactory showing that a
regulation is narrowly tailored to a compelling inter-
est.
If, for example, the CTA’s advertising limits
were challenged, the FCC might have difficulty pro-
ducing sufficient evidence to establish a compelling
governmental interest. As this Court noted in FCC v.
Fox Television Stations, Inc.
:
There are some propositions for which
scant empirical evidence can be mar-
shaled, and the harmful effect of broadcast
profanity on children is one of them. One
cannot demand a multiyear controlled
study, in which some children are inten-
tionally exposed to indecent broadcasts
(and insulated from all other indecency),
and others are shielded from all indecency.
It is one thing to set aside agency action
under the Administrative Procedure Act
because of failure to adduce empirical data
that can readily be obtained. It is some-
thing else to insist upon obtaining the un-
obtainable. Here it suffices to know that
children mimic the behavior they observe-
or at least the behavior that is presented
to them as normal and appropriate. . . .
Congress has made the determination that
indecent material is harmful to children. .
. .
129 S. Ct. 1800, 1813 (2009) (citations omitted).
While there is empirical research demonstrating
that certain advertising techniques are unfair to


15
children, it is not certain that a court would find a
sufficiently strong causal link to satisfy strict scru-
tiny.8

B.

Disturbing Pacifica

is unnecessary
and could harm children.

Amici agree with respondents CCV and CBS
Television Network Affiliates Association and NBC
Television Affiliates (“CBS and NBC Affiliates”) that
the FCC’s indecency enforcement in the present
cases is not justified by Pacifica. See, e.g., CCV Br.
at 10-14; CBS and NBC Affiliates Br. at 32. Amici do
not agree, however, that the premises underlying
Pacifica—the pervasiveness of broadcast media and
its unique accessibility to children—are no longer
valid and that Pacifica should be disturbed. See
Pacifica
, 438 U.S. at 748-50.
A substantial number of Americans depend on
over-the-air broadcasting. A recent study found that
46 million out of 110 million households relied on
over-the-air television broadcasting as their primary
means of receiving television programming, up from
42 million households a year earlier. Phil Kurz, 46
Million

Americans
Still
Watch
TV
Exclusively
over
the
Air,
says
Report,
BROADCASTENGINERING.COM,
http://broadcastengineering.com/ott/americans-still-
watch-tv-exclusively-over-the-air-06082011/
(June
08, 2011). Another recent study found that low-
income households with children are particularly de-

8 See, e.g., DALE KUNKEL & JESSICA CASTONGUAY, Children in
Advertising: Content, Comprehension, and Consequences
, in
HANDBOOK OF CHILDREN AND THE MEDIA (DOROTHY G. SINGER &
JEROME L. SINGER eds., 2011).


16
pendent on broadcast television. It found that while
98% of children under age eight in households with
incomes of $30,000 or less have a television, only
53% have cable, and only 48% have a computer.
COMMON SENSE MEDIA, ZERO TO EIGHT: CHILDREN’S
MEDIA USE IN AMERICA 20-23 (2011). Thus, broadcast
television remains a pervasive and important part of
American society that is uniquely accessible to young
children. Accordingly, Pacifica provides a viable and
important basis for the FCC to protect children from
daytime broadcasts of repetitive excretory and sex-
ual references.

III. The V-Chip does not provide an effective

less-restrictive alternative means for
protecting children from inappropriate
content.

Should the Court choose to evaluate the FCC’s
indecency regime under a heightened level of scru-
tiny, amici urge the Court to reject the argument of
ABC, Inc. that the V-Chip provides a less speech-
restrictive means for protecting children from inap-
propriate broadcast content. See, e.g., ABC, Inc. Br.
at 42. The mere existence of a possible alternative
means of accomplishing a government interest is not
enough. Rather, the less-restrictive alternative must
be “at least as effective in achieving the legitimate
purpose that the statute was enacted to serve.” Reno
v. ACLU
, 521 U.S. 844, 874 (1997) (emphasis added).
Experience has shown that the V-Chip and its under-
lying ratings scheme have not and cannot provide an
effective tool for protecting children from inappro-
priate content.


17

A.

The V-Chip and underlying TV rat-
ings were intended to provide a tool
for parents to protect their children
from indecent broadcast content.

Section 551 of the Telecommunications Act of
1996 was intended to provide parents “with the
technological tools that allow them to easily block
violent, sexual, or other programming that they be-
lieve harmful to their children.” Telecommunica-
tions Act of 1996, Pub. L. No. 104-104 § 551(a)(9),
100 Stat. 56 (codified in scattered sections of 47
U.S.C.). To work, section 551’s system requires that
broadcast video programming be embedded with rat-
ings and that television sets come equipped with a
device, known as the V-Chip, capable of decoding
those ratings, thus permitting parents to configure
the V-Chip in their television to block programming
they believe is inappropriate for their children.
More specifically, section 551 required all new
television sets with screens 13 inches or larger to be
equipped with the V-Chip starting in January 2000.
47 U.S.C. § 303(x) (2006). It provided program dis-
tributors a year to develop a voluntary ratings sys-
tem subject to FCC review. § 551(e)(1)(A).
Several industry trade associations, including
the National Association of Broadcasters (“NAB”),
the National Cable Television Association (“NCTA”)
and the Motion Picture Association of America
(“MPAA”) developed a ratings system that they sub-
mitted to the FCC in January 1997. Many parents
groups, public health organizations, and members of
Congress expressed concerns about the industry pro-
posal because it called only for age-based ratings,
and not content-based ratings that would alert par-


18
ents to the specific type of material they could expect
their children to view in a particular program. Im-
plementation of Section 551
, 13 FCC Rcd. 8232 at ¶
5 (1998) [hereinafter Implementation of Section 551].
Indeed, amicus Children Now urged the FCC to re-
ject the industry’s original proposal because the rat-
ings did not “tell parents why a program was rated
the way it was, preventing parents from making the
very decision the Telecommunications Act empow-
ered them to make.” Children Now, Comment to In-
dustry Proposal for Rating Video Programming
, FCC
Docket
No.
97-55
at
5
(Apr.
8,
1997),
http://fjallfoss.fcc.gov/ecfs/document/view?id=180882
0001 [hereinafter Children Now Comment].
Subsequent negotiations between industry rep-
resentatives
and
several
children’s
advocacy
groups—including AAP and Children Now—resulted
in a revised set of Parental Guidelines filed with the
FCC in August 1997. Under the revised guidelines,
each program receives one of six ratings based on
age as well as any of five applicable content-based
descriptors: “V” for “violence,” “S” for “sexual situa-
tions,” “L” for coarse “language,” “D” for suggestive
“dialogue,” and “FV” for “fantasy violence.”9 There
are a total of 44 different possible ratings combina-
tions.
The FCC found the revised ratings system ac-
ceptable. Implementation of Section 551, 13 FCC
Rcd. 8232 at ¶ 31 (1998). It based its determination

9 The age-based categories are as follows: TV-Y (suitable for all
children); TV-Y7 (directed to children age 7 and older); TV-G
(general audience); TV-PG (parental guidance suggested);
TV-14 (parents strongly cautioned); and TV-MA (mature audi-
ence only).


19
in part on a joint statement of the industry and ad-
vocacy groups asking that the FCC “give the rating
system a fair chance to work and allow parents an
opportunity to understand and use the system.” Id.
at ¶ 32. It also noted that the industry had pledged
to “educate the public and parents about the V-Chip
and the TV Parental Guideline System [and] encour-
age publishers of TV periodicals, newspapers and
journals to include the ratings with their program
listings.” Id. at Attachment: Agreement on Modifica-
tions to the TV Parental Guidelines.
Amici agree that Congress intended the V-Chip
to provide a narrowly tailored means of achieving a
compelling government interest. ABC, Inc. Br. at 43.
Congressman Markey, who sponsored the V-Chip
amendment in the House of Representatives, pre-
dicted that “[i]n [just] two years there will be 25 mil-
lion homes with a V-Chip” that “parent[s] can use to
protect their children.” 141 CONG. REC. H8481-01
(1995) (statement of Rep. Edward Markey). Shortly
before passage of the Telecommunications Act in
February 1996, President Clinton urged Congress in
his State of the Union Address to adopt the V-Chip
“so that parents can screen out programs they be-
lieve are inappropriate for their children.” William
Clinton, President of the United States, 1996 State
of the Union Address (Jan. 22, 1996).
Children’s advocacy groups initially shared this
enthusiasm. For example, the AACAP hailed the V-
Chip as “an important commitment, by legislators to
parents and to child advocates.” 141 CONG. REC.
S8225-01 (1995) (letter introduced by Sen. Kent
Conrad). Children Now noted that the V-Chip had
been “[c]hampioned by children’s advocates and pol-


20
icy makers from both sides of the aisle, [and] was
destined to forever change the way children view
television.” Children Now Comments at 1.

B.

In practice, the V-Chip has not pro-
vided parents with an effective tool
to protect their children.

Amici disagree with the claim that the V-Chip
provides an effective alternative. See, e.g., ABC, Inc.
Br. at 44. It is true that most households have tele-
visions equipped with V-Chips. Implementation of
the Child Safe Viewing Act
, 24 FCC Rcd. 11413,
11418 (2009) [hereinafter CSVA Report] (noting that
many households with older TV sets now have V-
Chip capability through their DTV converter box).
Numerous studies show, however, that parents are
not using this tool.
Congressional concern over the effectiveness of
the V-Chip and the associated ratings led Congress
to pass the Child Safe Viewing Act of 2007 (“CSVA”).
The CSVA directed the FCC “to examine the exis-
tence, availability and use of parental empowerment
tools already in the market.” Pub. L. No. 110-452 §
2(a)(3). The Senate Report on the CSVA specifically
cited studies finding that the V-Chip was not widely
used and that many parents were unaware of its ex-
istence. S. REP. NO. 110-268, at 2 (2008).
The FCC’s Report to Congress pursuant to the
CSVA stated that “[e]vidence of the V-Chip’s limited
efficacy in facilitating parental supervision of chil-
dren’s exposure to objectionable broadcast content
has reinforced the necessity of the Commission’s
regulation.” CSVA Report, 24 FCC Rcd. at 11420.
The Report summarized numerous studies finding


21
that the V-Chip was rarely used, that parents lacked
a basic understanding of the ratings, and that the
ratings are inaccurately applied. Id. at 11420-27.
For example, a 2007 study from the Kaiser
Family Foundation found that 67% of parents were
“interest[ed] in closely monitoring their child’s media
use,” but only 43% of those who had purchased a V-
Chip-equipped television since 2000 were even aware
that their television contained V-Chip technology.
KAISER FAMILY FOUNDATION, PARENTS, CHILDREN,
AND MEDIA: A KAISER FAMILY FOUNDATION SURVEY 9
(2007) [hereinafter KAISER 2007]. The same study
found that only 16% of parents had utilized the V-
Chip, a mere 1% increase since 2004 despite the
massive educational campaigns that had taken place
in the interim. Id. In contrast, 85% of parents with
children who play video games are aware of the En-
tertainment Software Ratings Board (“ESRB”) video
game ratings system, which was first implemented
in 1994, and 65% of parents regularly check a game’s
rating before making a purchase. ESRB, ESRB Sur-
vey: Parental Awareness, Use & Satisfaction
,
ESRB.ORG
(last
visited
Nov.
5,
2011),
http://www.esrb.org/about/awareness.jsp.
Additional studies have found that even when
parents are aware that they have the V-Chip, they
may experience difficulty using it effectively. Pro-
gramming the V-Chip can be a challenge; one study
noted that users must cycle through at least five
screens to turn on the V-Chip’s functionality and
“must move quickly or programming menus disap-
pear.” AMY JORDAN & EMORY WOODARD, PARENTS’
USE OF THE V-CHIP TO SUPERVISE CHILDREN’S TELEVI-
SION USE 3 (2003). The same study found that “many


22
mothers who might otherwise have used the V-Chip
were frustrated by an inability to get it to work
properly,” and that only 27% of mothers felt able to
block out a specific type of program upon request. Id.
Parents also have trouble understanding the
ratings system. Studies focusing on parental com-
prehension of the ratings show that many parents
are unaware of or confused about the meaning of the
ratings system. The 2007 Kaiser Study found that
among parents with children aged 2-6, only three in
ten could name any of the ratings used for children’s
programming. KAISER 2007 at 9. Moreover, 9% of
parents mistakenly believed that “FV” denoted that
a program was suitable for “family viewing,” and
only 11% were aware that “FV” actually denoted that
a program contained “fantasy violence.” Id. at 8.
Parents have even less familiarity with the rat-
ing system’s content-based descriptors. The 2007
Kaiser Study found that only about half of those sur-
veyed understood that “V” indicated “violence,” only
36% knew that “S” stood for “sex,” and only 2% knew
that “D” indicated “suggestive dialogue.” Id. at 9.
Pediatrics, the official journal of the AAP, re-
cently published the results of three studies of tele-
vision ratings. One study found that parents were
much less familiar with and less likely to use TV rat-
ings than movie or video game ratings. Douglas A.
Gentile, et al. Parents Evaluation of Media Ratings a
Decade After the Television Ratings Were Intro-
duced
, 128 Pediatrics 36, 38 (2011). A second study
found that only 5% of parents felt that television rat-
ings were always accurate. Id. Together, these stud-
ies show that parents “do not think the existing rat-
ings accurately provide the information they want


23
[and] although they want detailed content rating
they also want age-based ratings.” Id. at 42. While
parents generally agreed on the types of content they
wanted to know about, they lacked consensus on the
appropriate ages for different types of content. As a
result, age-based ratings “are clearly not going to be
perceived as accurate for all, or even most, parents.”
Id.
1.

Despite significant promotional
efforts, many parents remain
unaware of or unable to use the
V-Chip and/or do not know what
the underlying ratings mean.

Respondent ABC, Inc. claims that a less-
restrictive alternative cannot be dismissed solely
based on the lack of public use or awareness. ABC,
Inc. Br. at 45 (citing U.S. v. Playboy Entertainment
Group
, 529 U.S. 803 (2000)). Playboy, however, pre-
sented a very different set of facts than the present
case. Playboy concerned the constitutionality of a
different section of the Telecommunications Act, sec-
tion 505, codified at 47 U.S.C. § 561 (2006), which
required cable channels whose content was “primar-
ily dedicated to sexually oriented programming” to
fully scramble their signals to eliminate signal bleed
into homes that did not subscribe to those channels.
529 U.S. at 805. The Court held that section 505 was
unconstitutional in large part because parents could
request that their cable operator block any undesired
specific channel from their service, thus providing a
less speech-restrictive alternative. Although this al-
ternative was not widely used, the Court found “no
evidence that a well-promoted voluntary blocking
provision would not be capable at least of informing


24
parents to the problem of signal bleed . . . and about
their rights to have the bleed blocked.” Id. at 805.
(emphasis added).
In contrast, the V-Chip has been heavily pro-
moted for over a decade. When the FCC approved
the ratings in 1998, it relied on industry promises to
promote the V-Chip and ratings to parents. In the
following years, both industry and children’s advo-
cacy groups made significant efforts to educate the
public about the V-Chip. For example, in 1999, the
NAB, NCTA and MPAA teamed up with the Kaiser
Family Foundation to create the “V-Chip Education
Project,” which consisted of “a series of PSA’s, a
booklet with information about the V-Chip, a toll-free
phone number and a website.” CSVA Report, 24 FCC
Rcd. at 11438. In 2005, the NCTA, along with Cable
in the Classroom, developed the “Control Your TV”
initiative, a $250 million campaign designed to in-
form parents about the V-Chip. CABLE PUTS YOU IN
CONTROL, http://controlyourtv.org (last visited Nov. 8,
2011). The following year, several industry associa-
tions worked with the Ad Council to launch a $340
million national multi-media campaign called the
“TV Boss.” CSVA Report, 24 FCC Rcd. at 11438.
Thus, unlike in Playboy, an extensive campaign to
promote an alternative has been tried and has failed.
2.

The V-Chip’s underlying ratings
are neither accurately nor con-
sistently applied.

Even if there were greater public awareness of
the V-Chip and underlying ratings, the system can-
not be effective because the ratings underlying the V-
Chip’s operation are applied inaccurately and incon-
sistently. Studies have shown that many programs


25
are not accurately rated and that a large amount of
objectionable content reaches children.10 For exam-
ple, one study examined ratings over four years and
found more instances of crude language during pro-
grams rated TV-PG than in those rated TV-14. Bar-
bara K. Kaye & Barry S. Sapolsky, Offensive Lan-
guage in Prime-Time Television: Four Years After
Television Age and Content Ratings
, 4 J.BROAD. &
ELEC. MEDIA 554, 567 (2004).
Another study examined 2,757 television shows
and found that 79% of the shows contained violence
but no V (violence) descriptor rating, 91% contained
offensive language but no L (offensive language) rat-
ing, and 92% contained sexual content but no S (sex-
ual scenes) rating. DALE KUNKEL ET. AL., Assessing
the Validity of V-Chip Rating Judgments: The Label-
ing of High-Risk Programs
, in THE ALPHABET SOUP
OF TELEVISION PROGRAM RATINGS 51-68 (Bradley
Greenberg ed., 2001). A third study analyzed 1,332
television shows to determine the risk of harmful ef-
fects on youth. It found that the industry-assigned
ratings generally did not match the degree of risk.

10 It is also important to note that not all categories of pro-
gramming are rated and therefore not all broadcast programs
can be blocked by the V-Chip. Both news and sports programs
are not rated. FCC Br. at 51. Further, there is no V-Chip for
radio. 93% of people ages 12 and older listen to radio each
week. ARBITRON, RADIO TODAY 2011: HOW AMERICA LISTENS TO
RADIO 2 (2011). This study found that “teen consumption of ra-
dio each week is stronger and getting stronger.” Id. at 104. On
average teens spent between 7 and 10 hours per week listening
to radio. Id. at 106. The study also found that that peak listen-
ing rates occurred between 6am and 10pm. Id. This period falls
outside of the “safe-harbor period” during which broadcast may
air unregulated programming. See 47 C.F.R. § 73.3999(b).


26
For example, more than two-thirds of children’s
shows with high-risk violent content were rated as
TV-Y, the youngest rating, which generally does not
include content descriptors. Gentile, 128 PEDIATRICS
at 37 (2011). Finally, a survey of parents who use
the television ratings system showed that only 52%
thought that shows were rated accurately. VICTORIA
RIDEOUT, PARENTS MEDIA AND PUBLIC POLICY: A KAI-
SER FAMILY FOUNDATION SURVEY 5 (2004).
Respondent ABC, Inc. asserts that just because
some programs are inaccurately rated does not pre-
vent the V-Chip from being an adequate substitute.
ABC, Inc. Br. at 47 (citing Brown, 131 S. Ct. at 2741
(recognizing that the existence of some “gaps” in ef-
fectiveness of video game ratings systems is insuffi-
cient to justify a government ban on the sale of video
games to minors)). Television ratings, however, are
substantially less effective than video game ratings.
Unlike the ESRB, which rates approximately
1,000 video games per year,11 no single board deter-
mines the ratings for all television programs. Having
a single ratings body is practically impossible be-
cause many more television programs are produced
each year than motion pictures or video games. For
example, a single network, NBC, alone broadcasts
5,000 hours of TV programming each year.12 As a re-

11 Frequently Asked Questions, ESRB.ORG (last visited Nov. 5,
2011), ESRB.org/ratings/faq.jsp. In 2010, ESRB rated 1,638 ti-
tles. Id. Similarly, the MPAA has a single board that reviews
and rates 800 to 900 films each year. Reasons for Movie Rat-
ings: The Classification and Rating Administration,
FILMRAT-
INGS.COM
(last
visited
Nov.
5,
2011),
filmrat-
ings.com?filratings_CARA/#/about.
12 NBC Television Network, COMCAST.COM (last visited Nov. 3,


27
sult, each broadcast station is individually responsi-
ble for rating the programming it airs. CSVA Report,
24 FCC Rcd. at 11425 (citations omitted).
The problems inherent in rating large numbers
of programs have been exacerbated by the lack of
any meaningful oversight of the television rating
process. The FCC’s approval of the ratings was
premised in part on the creation of a Monitoring
Board to hear complaints over potentially incorrectly
rated programs. Implementation of Section 551, 13
FCC Rcd. at ¶ 10. In practice, however, the Board
has not effectively served this function. Several
amici representatives have served on the Board and
are unaware of any situation in which the Board has
taken action against an incorrectly rated program.
And even if the Board did find that a broadcaster in-
correctly rated a program, the Board has no author-
ity to alter the rating or sanction the broadcaster.
Dale Kunkel, an expert on children’s media,
testified before Congress that “[u]nless media ratings
can consistently and accurately label the content
that poses the greatest risk of harm to children, such
systems cannot accomplish much help for parents.”
Hearing on Media Ratings Before the S. Comm. On
Gov. Affairs
, 107th Cong. (2001) (Statement of Dale
Kunkel, Professor, University of California Santa
Barbara). Over the last decade, it has become clear
that the consistent and accurate application of the
ratings, which parents so strongly desire, has failed
to become a reality and thus, the V-Chip is not and

2011),
www.comcast.com/corporate/about/pressroom/NBCUniversal/
television.html.


28
never will be an equally effective alternative to regu-
lation.

CONCLUSION

For the above reasons, amici urge the Court to
uphold the court of appeals’ decision on the narrow
vagueness grounds upon which it was decided.
Respectfully submitted,

Angela J. Campbell
Counsel of Record
Blake E. Reid
Institute for Public
Representation
Georgetown Law
600 New Jersey Ave. NW
Washington, DC 20001
202.662.9535
ipr-efiling@law.georgetown.edu

NOVEMBER 9, 2011





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