Fox’s MOTION FOR LEAVE TO PARTICIPATE AS AMICUS CURIAE (PDF)

January 22, 2014 10:40 am by Gene Borio

The PDF is Here

EXCERPT:

Fox Broadcasting Company (“FBC” or “Movant”), by and through its undersigned counsel, hereby moves for leave to participate in this action as amicus curiae through the filing of an Amicus Brief, a copy of which is being tendered simultaneously with this Motion.
. . .

Interest of Proposed Amicus.

FBC’s interest in this action is limited to the issue of remedies. Specifically, FBC seeks to participate with regard to Section III (“Corrective Statements on Television” of the proposed Consent Order Implementing the Corrective Statements Remedy Under Order #1015 and Order #34-Remand (“Proposed Consent Order”). Movant believes that the universe of media proposed by the Court for dissemination of the Corrective Statements must be amended to include FOX among the “major television networks” on which the statements must appear. It is FBC’s belief that the exclusion of FOX from the named “major television networks” listed in the Proposed Consent Order was inadvertent. FBC’s participation will serve the limited purpose of correcting that omission. Moreover, the FBC brief demonstrates that inclusion of FOX as one of the television networks on which Defendants must broadcast the court-approved Corrective Statements will provide a more effective means of redressing the Defendants’ harmful conduct.

As this Court has affirmed, the “decision whether to allow a non-party to participate as an amicus curiae is solely within the broad discretion of the court.” Ellsworth Associates, Inc. v. United States, 917 F. Supp. 841, 846 (D.D.C. 1996). The Third Circuit has included the provision of background or factual references that merit judicial notice among categories of important assistance which an amicus may provide to the Court. Neonatology Associates, P.A. v. Commissioner of Internal Revenue, 293 F.3d 128, 132 (3d Cir. 2002). FBC’s brief provides factual material in support of a necessary revision to the Proposed Consent Order to reflect proper inclusion of FOX among the four major television networks through which the Court’s remedies are to be effectuated. FBC’s participation is therefore appropriate.

END EXCERPT

FULL TEXT:

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Plaintiff,

Civil Action No. 99-2496 (GK

and

January 22, 2014

TOBACCO-FREE KIDS ACTION FUND, et al.,

(Hearing

Plaintiff-Intervenors,

v.

PHILIP MORRIS USA, INC.,

(f/k/a Philip Morris, Inc.), et al.,

Defendants.

MOTION FOR LEAVE TO PARTICIPATE AS AMICUS CURIAE

Fox Broadcasting Company (“FBC” or “Movant”), by and through its undersigned counsel, hereby moves for leave to participate in this action as amicus curiae through the filing of an Amicus Brief, a copy of which is being tendered simultaneously with this Motion.

Background of Movant. FBC operates the FOX Network (“FOX”), one of the four major commercial broadcasting networks in the United States. Through more than 200 local station affiliates, FOX Network programming is broadcast over the airwaves to virtually any U.S. resident with a working antenna and a television, reaching 99.8% of the United States population, slightly more than ABC, CBS or NBC. Consumers with paid subscriptions to cable, satellite, and telco television providers also receive FOX Network programming, which includes critically-acclaimed dramas and comedies, live sporting events such as the 2014 NFL Super Bowl, and, through its affiliates, locally-produced news programming, public service announcements, and emergency information. FOX enjoys particular popularity among younger audiences, having been the preferred network among teenagers 12-17 and men 18-34 for 12 consecutive years. It was also the top-rated network for 11 of the past 12 seasons among all adults under the age of 35.

Interest of Proposed Amicus. FBC’s interest in this action is limited to the issue of remedies. Specifically, FBC seeks to participate with regard to Section III (“Corrective Statements on Television” of the proposed Consent Order Implementing the Corrective Statements Remedy Under Order #1015 and Order #34-Remand (“Proposed Consent Order”). Movant believes that the universe of media proposed by the Court for dissemination of the Corrective Statements must be amended to include FOX among the “major television networks” on which the statements must appear. It is FBC’s belief that the exclusion of FOX from the named “major television networks” listed in the Proposed Consent Order was inadvertent. FBC’s participation will serve the limited purpose of correcting that omission. Moreover, the FBC brief demonstrates that inclusion of FOX as one of the television networks on which Defendants must broadcast the court-approved Corrective Statements will provide a more effective means of redressing the Defendants’ harmful conduct.

As this Court has affirmed, the “decision whether to allow a non-party to participate as an amicus curiae is solely within the broad discretion of the court.” Ellsworth Associates, Inc. v. United States, 917 F. Supp. 841, 846 (D.D.C. 1996). The Third Circuit has included the provision of background or factual references that merit judicial notice among categories of important assistance which an amicus may provide to the Court. Neonatology Associates, P.A. v. Commissioner of Internal Revenue, 293 F.3d 128, 132 (3d Cir. 2002). FBC’s brief provides factual material in support of a necessary revision to the Proposed Consent Order to reflect proper inclusion of FOX among the four major television networks through which the Court’s remedies are to be effectuated. FBC’s participation is therefore appropriate.

Undersigned counsel have notified counsel for Plaintiffs and Defendants, by email, of FBC’s intent to submit an amicus brief. The email message, which was sent on Monday, January 20, 2014, described the brief generally and the relief sought and requested counsel to advise us if their respective clients oppose the relief sought and, if so, whether any areas of disagreement might be narrowed. As of the submission of the instant Motion (and the accompanying Amicus Brief), FBC’s counsel have received no substantive responses.1

For the foregoing reasons, FBC respectfully requests leave to participate in this action as amicus curiae with leave to file the attached brief.

January 21, 2014 Respectfully submitted,

/s/ .

Tony S. Lee, Esq. (D.C. Bar No. 450706

Harry F. Cole, Esq.

Davina S. Sashkin, Esq.

FLETCHER, HEALD & HILDRETH, PLC

1300 North 17th Street, 11th Floor

Arlington, VA 22209

703-812-0400

Attorneys for Amicus

FOX BROADCASTING COMPANY

1 It should be noted that January 20, 2014 was a federal holiday (in honor of Martin Luther King, Jr.

and, on January 21, 2014, federal government offices – and many private offices, including that of undersigned counsel – are closed because of a winter storm. Counsel for the Department of Justice (“DoJ”

did attempt to reach FBC counsel by phone, but were unable to do so because of the closure of FBC counsel’s office. FBC counsel has sent DoJ counsel a follow-up email to provide them additional information about FBC’s amicus brief.

CERTIFICATE OF SERVICE

I, Tony S. Lee, hereby certify that on this 21st day of January, 2014, I caused a copy of the foregoing “Motion for Leave to Participate as Amicus Curiae” to be served on counsel of record in the captioned proceeding through the Court’s CM/ECF system.

/s/ Tony S. Lee

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