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Weekly Report

June 10, 2007

The FCC has produced a new flyer on the DTV transition. -- "Buying the Right TV: What Every Consumer Should Know" -- Not sure how they intend to distribute it, but I bet they're not going to mail it to every household in the country. Now that would be an education!

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Sony's second-generation Blu-ray Disc player is now shipping to retailers and is due to be "released" on June 18. New lower price!

Sony first announced the BDP-S300 at $599, but now has reduced that to $499, apparently to meet Toshiba's aggressive HD-DVD pricing. Don't expect it to sell at a further discount right away; both Amazon.com and OneCall.com are selling it at $500, but with free shipping.

As you may recall, the BDP-S300 has HDMI 1.3 and can output at 1080/24p. It will not initially decode the advanced lossless audio codecs, but will output those undecoded signals via HDMI to one of the new A/V receivers that can do that decoding.

Sony has reduced by $200 the price of its first-generation BDP-S1 to $799, and new firmware is available for that player that allows it to decode Dolby TrueHD.

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Public TV's NewsHour with Jim Lehrer is going high-def on December 17. This will be the first live nightly PBS show that airs in HD.

Whether or not you watch this show, the switchover is significant in marking a sea-change in mainsteam television programming to high-definition. The NewsHour is mostly talking heads, not a flashy prime-time drama or jaw-dropping-gorgeous nature show. Just plain TV.

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Some news from the Ministry of Naughty Words: Two of those four-letter incantations have just won a television reprieve, courtesy of the U.S. Second Circuit Court of Appeals.

As you may recall, the FCC declared Fox in violation of government obscenity rules for Cher and Nicole Richie's 2002 and 2003 verbal malfunctions. Fox appealed and won.

The court in its opinion stated that the FCC's order was "divorced from reality."

Expect the 4-letter wars to be ongoing.

Warning: if these things offend you, read no further. I have not replaced the middle letters in the naughty words with the little "**"s, or used the "X-word" euphemism.

Senator Inouye expressed "disappointment" with the court's decision: "I hope and expect that the Commission will move swiftly in appealing this case to the Supreme Court."

For its part, the FCC does not seem ready to roll over and play dead. Two of the Commissioners issued unrepentant statements.

Commissioner Copps (like Inouye) released a statement expressing disappointment.

"But it doesn't change the FCC's legal obligation to enforce the indecency statute. So any broadcaster who sees this decision as a green light to send more gratuitous sex and violence into our homes would be making a huge mistake. The FCC has a duty to find a way to breathe life into the laws that protect our kids. That may entail an appeal of this decision. Certainly it includes strong enforcement action of the many indecency complaints before us that are untouched by today's decision."

FCC Chairman Martin's lengthy statement challenged the court's decision.

"It is the New York court, not the Commission, that is divorced from reality in concluding that the word "fuck" does not invoke a sexual connotation."

"If ever there was an appropriate time for Commission action, this was it. If we can't restrict the use of the words "fuck" and "shit" during prime time, Hollywood will be able to say anything they want, whenever they want."

Martin goes on to lobby Congress for the establishment of a la carte channel pricing, using the court's decision as a lever:

"Today's decision by the Court increases the importance of Congress considering content-neutral solutions to give parents more tools and consumers generally more control and choice over programming coming into their homes. By allowing them to choose the channels that come into their homes, Congress could deliver real power to American families. Permitting parents to have more choice in the channels they receive may prove to be the best solution to content concerns."

One would have to conclude that he does not believe the FCC can introduce a la carte channel pricing on its own, either for lack of legal authority or more simply without the political support of key members of Congress.

At least a la carte is alive.

The nitty-gritty, for those interested:

The FCC has adopted a standard for what is indecent and profane (although it seems that the decisions often have to be contorted to reach the desired results).

FCC's indecency analysis:

"First, the material alleged to be indecent must fall within the subject matter scope of our indecency definition -- that is, the material must describe or depict sexual or excretory organs or activities."

"Second, the material must be patently offensive as measured by contemporary community standards for the broadcast medium."

"Three principal factors are significant to this contextual analysis: (1) the explicitness or graphic nature of the description; (2) whether the material dwells on or repeats at length the descriptions; and (3) whether the material panders to, titillates or shocks the audience."

Background on the court decision:

On March 15, 2006, the FCC passed judgment on several instances of bad language on TV during the protected hours (daytime through 10 p.m.) as a result of viewer complaints (although some complaints were submitted by conservative lobby groups, even though those people had not actually seen the offending show).

A couple of these "bad" language uses were not sanctioned due to exceptions in the FCC's rules. For example, bad words spoken during the movie Saving Private Ryan (aired on broadcast TV) by soldiers in action (the extreme violence also got a pass) were judged to be integral to the realistic portrayal of the battle.

Another allowed case was a CBS Early Show interview during which a Survivor cast-off described another contestant as a "bullshitter." While the FCC asserted that "bullshitter" depicts or describes an excretory activity or organ, as a derivative of the word "shit," and was therefore shocking and vulgar, it decided to allow the indiscretion as part of a legitimate news interview.

Commissioner Adelstein objected to the pass on this last one, pointing out the stretch the Commission had to take to turn a network promotion piece for one of their programs into a news interview, but perhaps that tack was taken to obscure the interpretation that "bullshit" refers to the excretory function when used to mean a statement so transparently false as to be ludicrous.

But back to the two incidents that the FCC said were indecent and profane that have now been let off the hook by the Court.

These date from 2002 and 2003.

During the 2002 Billboard Music Awards, the entertainer Cher made the following comment:

"I've had unbelievable support in my life, and I've worked really hard. I've had great people to work with. Oh, yeah, you know what? I've also had critics for the last 40 years saying that I was on my way out every year. Right. So fuck 'em. I still have a job and they don't."

At the 2003 Billboard Music Awards, it was Nicole Richie's turn (appearing with Jailbird Hilton):

Paris Hilton: "Now, Nicole, remember, this is a live show, watch the bad language."

Nicole Richie: "Okay, God."

Paris Hilton: "It feels so good to be standing here tonight."

Nicole Richie: "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."

Note: Richie's scripted line was "Have you ever tried to get cow manure out of a Prada purse? It's not so freaking simple."

Fox argued that "fuck" in context did not depict or describe sexual activities but rather, "at most," was a "vulgar expletive used to express emphasis," and thus was outside the scope of the Commission's indecency definition.

The FCC in its decision said the use of "fuck" for "emphasis or as an intensifier comes within the subject matter scope of our indecency definition [because] any use of that word has a sexual connotation even if the word is not used literally." . . . "Moreover, it hardly seems debatable that the word's power to 'intensify' and offend derives from its implicit sexual meaning."

See why the court said the FCC was "divorced from reality"?

The FCC's decision was also a departure from its own precedents that said isolated expletives would not be indecent. In this latest decision, the FCC admits it "overturned the Bureau-level decisions holding that an isolated expletive could not be indecent and disavowed our 1987 dicta on which those decisions were based."

As for Nicole Richie's "cow shit" transgression, Fox admitted that the use was indeed of the excretory sense, but argued the term was used in passing and "that it was not pandering, titillating or shocking."

The FCC disagreed, asserting that the "graphic and explicit description of the handling of excrement during a live broadcast of a popular music awards ceremony when children were expected to be in the audience was vulgar and shocking."

Would it have been less graphic and explicit if she had used the scripted term "cow manure"?

"Have you ever tried to get cow shit out of a Prada purse?" What I want to know is what's a Prada purse? If I knew that, maybe I'd be shocked.