Brief for Amicus Curiae Parents Television Council in Support of Federal Communications Commission
No. 06-1760-AG (L)
United States Court of Appealsfor the Second Circuit
FOX TELEVISION STATIONS, INC., et al.,
FEDERAL COMMUNICATIONS COMMISSION, et al.,
NBC UNIVERSAL, INC., et al.,
On Petition for Review of an Order
Of the Federal Communications Commission
On Remand From the Supreme Court of the United States
BRIEF FOR AMICUS CURIAE PARENTS TELEVISION COUNCIL
IN SUPPORT OF FEDERAL COMMUNICATIONS COMMISSION
October 28, 2009
Counsel for Parents Television
TABLE OF CONTENTS
TABLE OF CONTENTS
TABLE OF AUTHORITIES
INTEREST OF AMICUS CURIAE AND
AUTHORITY TO FILE
This Case Is Not About Creative Judgment Or The
The FCC Is Not Seeking To Impose Its Subjective Opinion
This Court May Not Find The FCC's Enforcement
CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF
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TABLE OF AUTHORITIES
FCC v. Pacifica Foundation, 438 U.S. 726 (1978)
FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, (2009) 12, 14, 17
Reno v. ACLU, 521 U.S. 844 (1997)
Statutes and Regulations
18 U.S.C. 1464 passim
47 C.F.R. 76.51, et seq. 14
Federal Rules of Appellate Procedure
Industry Guidance on the Commission's Case Law Interpreting
18 U.S.C. 1464 And Enforcement Policies Regarding Broadcast
Indecency, 16 FCC Rcd. 7999 (2001) 7, 8
Complaints Regarding Various Television Broadcasts Between
February 2, 2002 and March 8, 2005, 21 FCC Rcd. 2664 (2006)
Complaints Against Various Broadcasters Licensees Regarding
Their Airing of the "Golden Globe Awards," Memorandum
Opinion and Order, 19 FCC Rcd. 4975 (2004).
8-18 Year-olds (2005) 15
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CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rules of Appellate Procedure Rule 26.1, amicus
curiae Parents Television Council (PTC), respectfully submits this corporate
PTC does not have a parent company and no publicly held company
owns 10% or more of stock in PTC.
INTEREST OF AMICUS CURIAE AND AUTHORITY TO FILE
PTC is a corporation qualified under United States Internal Revenue
Code Section 501(c)(3) as a charitable, non-profit, non-stock research and
education foundation dedicated to improving the content of entertainment
programming with emphasis on prime time television. PTC is supported by
charitable contributions from its members and supporters residing throughout the
Founded in 1995 to ensure that children are not constantly assaulted
by sex, violence and profanity on television and in other media, PTC is a national
grassroots organization with members across the United States, and works with
television producers, broadcasters, networks and sponsors in an effort to stem the
flow of harmful and negative messages targeted at children. Central to PTC's
mission is working with elected and appointed government officials and agencies
to enforce broadcast decency standards, including the filing of complaints with the
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FCC and prosecuting such complaints at the agency and in the federal courts of the
PTC submits this brief as amicus curiae in support of the
FCC's determination in Sections IIIA and IIIB of its 2006 Order that the
broadcasts at issue were indecent. Complaints Regarding Various
Television Broadcasts Between February 2, 2002 and March 8, 2005, 21
FCC Rcd. 2664 (2006)("2006 Order").
PTC has obtained the written consent of all parties to file this
SUMMARY OF ARGUMENTThis case is about what Fox broadcast two years in a row on the
Billboard Music Awards, a program it knew was of interest chiefly to
younger viewers. It ran teasing advertisements for its 2003 broadcast and it
approved an edgy script that all but invited Nicole Richie to say what she
said on that broadcast. Fox now professes surprise at what happened, and
confusion about what it can broadcast in the future. That is nonsense. Fox
knew what it was doing. If it honestly believed it could safely broadcast
occasional or fleeting expletives it would not have had in place a delay
system for both the broadcasts at issue here, and it would not have deleted
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what Cher and Nicole Richie said when it rebroadcast the challenged
programs in later time zones.
Rather than the facts, Fox, the other respondents, intervenors,
and their amici want this case to be about other, grander things - artistic
freedom, the value of live broadcasting, and a fight against what they claim
is the FCC's subjective opinion about what is worthy of broadcast on
network television. Things are not as dire as Fox and the others on its side
claim. The FCC has not decreed that Cher and Nicole Ritchie can never use
foul language on network television. It has simply enforced the 10 p.m. to 6
a.m. safe harbor rule.
Fox and others also urge this Court to strike down the FCC's
indecency enforcement regime as unconstitutional, something this Court
must not do, as explained below. The Court should decide this case on the
facts of the broadcasts at issue, and not on the imagined parade of horribles
touted by Fox and the others on its side.
The Challenged Broadcasts
This case did not arise in a vacuum. For years, the FCC
enforced 18 U.S.C. 1464 ("Section 1464") with a light hand in part
because the broadcasters showed some restraint in what they put on the air.
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But in recent years, the broadcasters including Fox have begun to
broadcast edgier, racier fare. Viewers in turn began to complain about some
of that broadcasting and, in 2001, the FCC issued a much-needed policy
statement aimed at helping the broadcast industry avoid violations of Section
1464. In re Industry Guidance on the Commission's Case Law Interpreting
18 U.S.C. 1464 and Enforcement Policies Regarding Broadcast Indecency,
16 FCC Rcd. 7999 (2001) (Industry Guidance). That Guidance made clear
that fleeting expletives, in context, could violate Section 1464. Id. 17, 19.
The Guidance did not say that every isolated utterance would constitute a
violation; it simply said that, hereafter, challenged broadcasts of isolated
expletives would be judged in context.
NBC one of the Intervenors in this case - ignored the FCC's
Industry Guidance. In January 2003 it broadcast the Golden Globe Awards,
during which the singer Bono in accepting an award said on prime time
television, "This is really, really fucking brilliant. Really, really great."
Complaints Against Various Broadcast Licensees Regarding Their Airing of
the "Golden Globes Awards" Program, 19 FCC Rcd. 4975 (2004). The
FCC found that in context Bono's comment was indecent, but it did not
impose any sanction on NBC because the Commission's prior administrative
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precedent had suggested that a fleeting broadcast of a single expletive like
Bono's was not indecent. Id. 12, 15.
Fox, too, ignored the Industry Guidance. On December 9, 2002
it broadcast the Billboard Music Awards, which aired at 8 p.m. on the East
Coast. The entertainer Cher received an award and during her acceptance
speech she taunted her critics, and concluded, "People have been telling me
I'm on the way out every year, right? So fuck `em. I still have a job and
they don't." 2006 Order 55. FOX gave its 2002 broadcast only a TV-PG
(parental guidance suggested) rating.1 According to Nielsen ratings data,
just under 28% of the almost 10 million viewers of the 2002 Billboard Music
Awards were under 18, and 12.7% of those were between the ages of 2 and
11. Id.59. The bland rating that Fox assigned to that broadcast would not
have alerted parents that their children might be exposed to Cher's foul
language. Fox edited out Cher's comment in its rebroadcast of the Billboard
Music Awards in the Mountain and Pacific Time Zones, Id. 62, and it did
not claim before the FCC that Cher's comment had any artistic merit or was
necessary to convey a message. Id. n.191.
The next year, almost to the day, Fox again broadcast the
Billboard Music Awards, again in prime time, at 8 p.m. on the East Coast.
1 An explanation of Fox's ratings system is found in the FCC's 2006 Order at 18 n.47.
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And again it broadcast the same word that Cher had used the year before,
and another to boot. This time, Paris Hilton and Nicole Richie, the stars of a
show called "The Simple Life," were teamed to present an award. Fox's
script writers teased the audience about Cher's expletive of the year before
on the same show by having Ms. Hilton warn Ms. Richie to "watch the bad
language." "It feels so good to be standing here tonight," Ms. Hilton
continued. Without missing a beat, Ms. Richie replied, "Yeah, instead of
standing in mud and [audio blocked]. Why do they even call it `The Simple
Life'? Have you ever tried to get cow shit out of a Prada purse? It's not so
fucking simple." 2006 Order 13. Fox edited out Ms. Richie's comments in
its rebroadcast of the Billboard Music Awards in the Mountain and Pacific
Time Zones, Id. 29 and it conceded before the FCC that Nicole Richie's
language during that broadcast did not have any artistic merit and did not
convey any message. Id. 17 n.44.
Again, according to the Nielsen ratings, the audience included a
significant number of viewers under 18 (23.4%) and a large audience
between the ages of 2 and 11 (11%). 2006 Order 18. And again, despite
its experience the year before with Cher, Fox again mislabeled its program.
This time, it rated it as TV-PG(DL), the "D" meaning that the program may
contain some suggestive dialogue, the "L" that it may contain some
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infrequent coarse language. Id. 18 n. 47. There was nothing suggestive
about Ms. Richie's language; it was explicit, and her comments can only
charitably be described as coarse.
Fox knew what was likely to happen. In the course of three
episodes of "The Simple Life" it had broadcast in the days leading up to the
2003 Billboard Music Award show, Fox had had to bleep Ms. Richie nine
times. Id. 33. In addition, the actual script Ms. Richie was to follow in the
2003 Billboard Music Awards show used the words "cow manure" and
"freaking," which was catnip to Ms. Richie. Id. The Court should therefore
take with a grain of salt Fox's protests of wide-eyed surprise that Ms. Richie
decided to "go blue" on the air, as she had so often done on "The Simple
This Case Is Not About Creative
Judgment Or The Value Of Live Broadcasting
In 2002, when Cher shouted "Fuck `em" on stage, she was
giving a verbal middle finger to her critics. She used the word in its literal
sense, not as an intensifier, and she used it gratuitously. The same is true of
what Nicole Richie said in 2003. Fox's professed concern over the FCC's
enforcement regime posing a threat to creative judgment (Fox Brief at 59) is
out of place here. For as Fox readily conceded to the FCC, there was
nothing creative about what either Cher or Nicole Richie said.
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This case also does not herald the death of live broadcasting.
Fox and the other broadcasters continue to broadcast breaking news live.
Fox points to no real record evidence to the contrary, and instead worries
about what might happen, not what has happened. As for awards shows,
Fox broadcast the 2003 Billboard Music Awards show live only on the East
Coast. The other time zones saw that program on a one or three-hour delay.
2006 Order 36. In addition, the FCC record shows that the majority of
awards shows are not aired live at all. Id. n. 104. In short, there is no
evidence that viewers have been denied live broadcasting they might
otherwise have seen but for the FCC's indecency enforcement regime.
The FCC Is Not Seeking To Impose Its
Subjective Opinion On What Can Be Broadcast
The FCC found that what Cher and Nicole Richie said on the
Billboard Music Awards shows was indecent in the context of those
broadcasts. Attention to context in considering a challenged broadcast is
not, as Fox argues, tantamount to the FCC's imposition of its subjective
opinion on the merits of broadcast television content. Fox Brief at 58.
Context is a familiar tool of constitutional adjudication - from "time, place
and manner" restrictions on speech, to the old saw about shouting fire in a
crowded theater. As is true with obscenity, there can be no fixed rule of
what is and is not indecent, the FCC's definition of indecency therefore
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provides that a fleeting expletive may not shall be considered indecent
based on the context of a particular broadcast. "Context is all-important,"
the Supreme Court held in FCC v. Pacifica Found., like a pig in a parlor
the right thing in the wrong place. 438 U.S. 726, 750 (1978). See FCC v
Fox Television Stations, Inc. (describing the Commission's examination of
the broadcasts at issue in this case as fitting "with the context-based
approach we sanctioned in Pacifica."). 129 S. Ct. 1800, 1812 (2009).
The FCC has not decreed in this case that the challenged
language may never be used in broadcast television. Indeed, based on
context, the Commission has found unobjectionable the same language at
issue here used repeatedly in Saving Private Ryan. Fox professes to be
confused by this apparent inconsistency and frets that it is cannot know what
it can safely broadcast. Fox and other broadcasters exercise discretion every
day in deciding what to air; they understand context and judgment. Fox
knows that there is a world of difference between the gratuitous and tawdry
outbursts of celebrities during awards shows and the use of coarse language
for dramatic effect during combat scenes in Saving Private Ryan.
Fox knew full well that it was playing with fire during both the
2002 and 2003 broadcasts. It knew in 2002 that performers often go off
script and it took steps such as they were to guard against it. It had in
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place a 5-second delay during the 2002 broadcast, 2006 Order 64, and still
it did not prevent Cher's gratuitous outburst. It used the same ineffective
measure for the broadcast of the same show in 2003. Fox fully understood
its obligations under the FCC's enforcement regime. Its serial failures to
prevent the same unscripted indecency on the same show two years in a row
do not suggest confusion; they suggest laxity.
This Court May Not Find The FCC'sEnforcement Regime Unconstitutional
Pacifica does not permit this Court to find the FCC's
enforcement regime unconstitutional. This Court recognized in its dicta the
last time this case was before it that as long as Pacifica is still good law, the
Court is not free to declare the Commission's enforcement regime
unconstitutional. Despite what Fox and others say, Pacifica is still good
Pacifica and its context-based approach to indecency regulation
underpins the Supreme Court's decision in this case. Writing for the
majority, Justice Scalia (joined by four others) relied on Pacifica in several
places in his opinion upholding the Commission's enforcement regime
against a challenge under the Administrative Procedure Act ("APA"). In
addition, Justice Stevens noted in a footnote in his dissent that he and Justice
Thomas who wrote separately to say that he believed the holding of
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Pacifica was open to serious question disagreed "about the continuing
wisdom of Pacifica." 129 S. Ct. at 1828 n.5. Justice Stevens also noted that
Pacifica permits the Commission to regulate words that describe sex or
excrement, Id. at 1827, which is just how Cher and Nicole Richie used the
words they did in this case. Thus, Pacifica is not, as Fox and the others
would have it, a quaint outlier that is not long for this world.
The uniquely pervasive nature of broadcast television was
important to the outcome in 1978 in Pacifica, 438 U.S. at 748, and
broadcasting is still uniquely pervasive. All those who have a television
receive the broadcast networks, but not everyone who has a television gets
cable. It is true that access to cable has expanded greatly in the last several
years, but those who have cable do not have all available channels, and are
in fact likely to have only a selected universe of cable channels. In that way,
cable users have some control over what they see on cable television. All
cable television users, however, also get broadcast television, which must be
carried as part of a cable television package. 47 C.F.R. 76.51, et seq. In
that way, broadcast television is unique: those who purchase cable television
access have some say over what they get on cable, but they have no say over
whether they get broadcast television.
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Broadcast television's pervasiveness can be seen as well in the
huge advantage it has in viewership when compared to cable and satellite.
In September 2006, each of the top ten broadcast programs had more than 15
million viewers; only one cable program had even 5 million viewers. 2006
Order 50. During the 2004-2005 season, of the 495 most-watched
programs, 485 of them were on broadcast television and the highest-rated
cable program rated only 257 on the list of most-watched programming. Id.
With broadcasting that far ahead of its competition, it is safe to say that it is
not only pervasive; it is uniquely pervasive.
For the same reason, it is still uniquely accessible to children.
The FCC noted in its 2006 Order that a 2005 Kaiser Family Foundation
report found that some 68% of children between the ages of eight and 18
have a television set in their bedrooms, and almost half of those are
broadcast-only. Id. 49, citing Kaiser Family Foundation, Generation M:
Media in the Lives of 8-18 Year-olds 77 (2005).
The Supreme Court also recognized that broadcasting can be
intrusive, noting that indecent material over the airwaves confronts a viewer
"in the privacy of the home, where the individual's right to be left alone
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plainly outweighs the First Amendment rights of an intruder." Id.2 This
Court should be sensitive to the understandable desire of those in the
viewing public who do not want in their living rooms entertainers like Cher
and Nicole Richie mouthing gratuitous crudities in prime time. It is no
answer to say that viewers can simply turn off their televisions or watch
something else. After all, the airwaves belong to the viewers, not to the
broadcasters. The broadcasters, on the other hand, have many other
channels available to them to ensure that Cher and Nicole Richie are heard
by those who want to hear them before 10 p.m. After that time, of course,
Fox is free to broadcast an unedited version of the challenged broadcasts.
The Supreme Court's holding in Reno v. ACLU, 521 U.S. 844,
117 S.Ct. 2329 (1997) in no way overtakes Pacifica. The Supreme Court in
Reno expressly distinguished the facts in that case from those in Pacifica:
(a) in Pacifica, as here, the Court was dealing with regulation of speech by
the FCC, an agency with longstanding expertise in broadcast regulation,
concerning an order that designated when not whether the challenged
speech could air. That was not true in Reno, which involved a flat
proscription of speech unsupervised by an agency with expertise in such
2 It is also worth recalling Justice Powell's observation in his concurrence in Pacifica that "broadcasting
unlike most other forms of communication comes directly into the home, the one place people ordinarily
have the right not to be assaulted by uninvited and offensive sights and sounds." 438 U.S. at 759 (citations
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matters; (b) in Pacifica, as here, the Commission's order was not punitive.
Indeed, here, the Commission did not even assess a civil penalty against Fox
for its 2002 and 2003 broadcasts. The law at issue in Reno was a criminal
statute; and (c) Pacifica dealt with an order that applied to a broadcast
medium that as matter of history had received the most limited First
Amendment protection. 521 U.S. at 867. The same is true here. Reno is
therefore not an invitation to work around the holding of Pacifica.
Fox and the other broadcasters tout technology as the solution
to the problem of broadcast indecency. For them, it is a simple matter for
viewers to use the v-chip or some other technology to avoid programming
they do not want to see. That is a neat solution from their standpoint. It
permits them to broadcast whatever they want at any time and is a backdoor
repeal of Section 1464.
PTC contends that the technology argument cuts the other way.
Section 1464 is directed at the broadcasters, not at the recipients of
broadcasts. In addition to its unique pervasiveness and intrusiveness,
broadcast television is different from other media in another way.
Broadcasters are granted the free and exclusive use of a limited and valuable
part of the public domain in return for certain obligations, among them the
duty to comply with Section 1464. Available technology makes it relatively
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simple for Fox and the other broadcasters to do that. The 5-second delay
technology that proved so inadequate in this case can easily be lengthened to
10 seconds or even a bit longer. Access to such technology and its easy use
was a contributing factor in the Supreme Court's decision in this case
upholding the Commission's enforcement regime under the APA. 129 S.Ct
at 1813. It is not unreasonable to insist that broadcasters who have the free
and voluntarily use of an important part of the public domain take minimal
steps to use more effectively the technology they are already using.
Broadcasters who are serious about their obligations under Section 1464
should not object to such a requirement.
After all, they have the free use of the airwaves; they control
what goes out over those airwaves, and they reap huge financial gain from
their use. It is simply wrong for the broadcasters to argue that the remedy
for broadcast indecency is not at the source but at the receiving end, through
use of v-chip or other technology whose cost is to be borne by the viewers.
See, e.g., Fox Brief at 52. There is something wrong with a business model
that imposes on the customer the costs of compliance with a statute aimed at
protecting that customer.
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These are bad facts for Fox. It made the same mistake two
years in a row on the same awards show. It did not claim that the challenged
language had any artistic merit or conveyed a message of any kind, and the
language was used literally and gratuitously. Although the FCC found that
the 2002 and 2003 broadcasts were indecent, it did not assess a monetary
penalty against Fox for what it did. Fox's President of its Entertainment
Division even admitted in testimony to Congress that Ms. Richie's
comments on national television included "inappropriate language." 2006
Now, though, Fox claims its artistic prerogatives are at risk, that
the future of live television programming hangs in the balance and that it
does not know what it can safely broadcast in the future. If the FCC had
proscribed outright the broadcast in any circumstances of the words at issue
in this case, Fox and the others on its side here might have a real grievance.
But the FCC has not done that and has instead given the broadcasters room
to exercise their judgment while at the same time trying to give some
meaning to Section 1464.
The professed concerns of Fox and the other parties in this case
are a proxy for their desire to escape the strictures of Section 1464. They
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want to compete freely with cable television and other media, all of which,
they claim, have an unfair advantage because they are not subject to the
indecency restrictions of the statute. Granting them what they want would
let them have the benefits of the free and exclusive use of the public's
airwaves with none of the Congressionally-imposed burdens, and thereby tilt
the playing field in their favor and against all others.
This Court should uphold what little the FCC has done here
about these tawdry broadcasts and end this matter.
PARENTS TELEVISION COUNCIL
/s/ Robert R. Sparks, Jr ._______
Robert R. Sparks, Jr., Esquire
Sparks & Craig, LLP
October 28, 2009
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CERTIFICATE OF COMPLIANCE WITH
FEDERAL RULE OF APPELLATE PROCEDURE 32(a)
This brief complies with the type-volume limitations of Fed. R. App.
P. 32(a)(7)(B) because this brief contains 4,576 words (as determined by the
Microsoft Word 2003 word-processing system used to prepare the brief), excluding
the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Fed. R. App. P.
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/s/ Robert R. Sparks, Jr ._______
Robert R. Sparks, Jr.
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ANTI-VIRUS CERTIFICATION FORMFox Television Stations, Inc. v. FCC
Case No. 06-1760-ag(L)
I certify that I have scanned for viruses the PDF version of the
attached document that was submitted in this case as an email attachment to
email@example.com and that no viruses were detected. The name and
version of the anti-virus detector that was used is McAfee VirusScan Professional
/s/ Robert R. Sparks, Jr ._______
Robert R. Sparks, Jr.
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CERTIFICATE OF SERVICE
I hereby certify that a true and exact copy of the foregoing Brief
for Amicus Curiae Parents Television Council in Support of Federal
Communications Commission, was served by electronic mail upon the
parties listed on the attached Service List this 28th day of October, 2009.
Center for the Creative
NBC Universal Inc. and NBC
Community, Inc., Intervenor
Telemundo License Co.,
c/o Andrew Jay Schwarztman,
c/o Miguel A. Estrada, Esquire
Media Access Project
Gibson, Dunn & Crutcher, LLP
1625 K Street, NW
1050 Connecticut Avenue, N.W.
Washington, D.C. 20006
Washington, D.C. 20036-5306
CBS Broadcasting, Inc., Petitioner
NBC Television Affiliates,
CBS Television Network Affiliates
c/o Robert A. Long, Esquire
Fox Television Affiliates
Covington & Burlington
1201 Pennsylvania Ave., N.W.
Fox Television Station, Inc.,
Washington, D.C. 20004
c/o Carter G. Phillips, Esquire
Sidley Austin, LLP
CBS Broadcasting, Inc., Petitioner
1501 K Street, N.W.
Fox Television Stations, Inc.,
Washington, D.C. 20005
c/o Robert L. Corn-Revere,
Davis, Wright & Tremaine
1919 Pennsylvania Avenue, N.W
Washington, D.C. 20006
ABC, Inc., Petitioner, Intervenor
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KTRK Television, Inc., Petitioner
United States of America,
WLS Television, Inc., Petitioner
c/o Seth Paul Waxman, Esquire
US Department of Justice
Wilmer Cutler Pickering Hale &
Thomas M. Bondy, Esquire
950 Pennsylvania Avenue
2445 M Street, N.W.
Washington, D.C. 20530
Washington, D.C. 20037
ABC Television Affiliates
Wade Hampton Hargrove, Esquire
Brooks, Pierce, McLendon,
Humphrey & Leonard, LLP
Post Office Box 1800
445 12th Street, S.W.
Raleigh, North Carolina 27601
Washington, D.C. 20554
/s/ Robert R. Sparks, Jr ._______
Robert R. Sparks, Jr.
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