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

January 28, 2014 10:38 am by Gene Borio

The PDF is Here

EXCERPT:

Viacom Inc. . . . hereby moves, on behalf of its television networks MTV®, MTV2®, VH1®, Comedy Central® and BET®, for leave to participate in this action as amicus curiae . . .

Viacom’s interest in this action is limited to the issue of the sufficiency, including the structure, of the remedies proposed. In this Court’s Opinion filed November 27, 2012, the Court made clear that the types of media Defendants used to convey commercial messages had “changed dramatically” since 2006. Television media has also changed dramatically in the fortythree years since Defendants broadcast their deceptive messages on television. The Proposed Consent Order does not reflect those changes.

As explained in Viacom’s brief, Viacom’s targeted networks may provide a more effective means than any of CBS, ABC, or NBC, for redressing Defendants’ conduct among young people, including Black young people—the demographics that were targeted by Defendants in their misleading advertising. For these reasons, and as explained more fully in its brief, Viacom respectfully requests that the Court (1) deny the motion for approval of the Proposed Consent order; (2) find that Viacom’s networks are appropriate vehicles for the Corrective Statements, and (3) direct the parties, with the assistance of the Special Master and with input from amici curiae including Viacom, to conduct a comprehensive inquiry into, inter alia, the distribution of the Corrective Statements to the target audiences, the quantity of advertisements that can be purchased on each such network for equivalent resources, and the days and times of the broadcast of the Corrective Statements to ensure the effective distribution of the corrective messages to the target audiences. In the alternative, Viacom requests that the Proposed Consent Order be amended to require that a portion of Defendants’ advertising “spend” be used to purchase spots on Viacom’s networks. Viacom believes this simple modification of the order as it currently stands will increase the probability that the Corrective Statements are transmitted to young people including young African Americans.

END EXCERPT

FULL TEXT:

2920898.1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
—————————————————————— x
UNITED STATES OF AMERICA,
Plaintiff,
and
TOBACCO-FREE KIDS ACTION FUND, et al.,
Plaintiff-Intervenors,
- v -
PHILIP MORRIS USA, INC.
(f/k/a Philip Morris, Inc.), et al.,
Defendants.
::::::::::::::::::
Civil Action No. 99-2496 (GMK)
—————————————————————– x
MOTION FOR LEAVE TO PARTICIPATE AS AMICUS CURIAE
Viacom Inc. (“Viacom”), by and through its undersigned counsel, hereby moves,
on behalf of its television networks MTV®, MTV2®, VH1®, Comedy Central® and BET®, for
leave to participate in this action as amicus curiae through the filing of an Amicus Brief and
accompanying declarations, copies of which are filed simultaneously with this Motion.
Background of Movant
Viacom is a leading global entertainment content provider and, through its
division Viacom Media Networks (“VMN”), operates media networks businesses and
international operations that reach approximately 700 million households in over 160 countries
and territories worldwide via more than 200 locally programmed and operated TV channels. Of
all networks in the United States with 50 million or more subscribers, Viacom features four of
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the five networks with the highest concentration of 18 to 34 year old viewers: MTV, MTV2,
VH1, and Comedy Central. BET (Black Entertainment Television) is the nation’s leading
television network providing entertainment, music, news and public affairs programming to
African-American audiences, and the BET television channel focuses on young Black adults.
Further, Viacom’s networks take a strong leadership role in actively seeking to protect the health
and wellness of today’s young people. This leadership role positions Viacom’s networks to
more effectively disseminate the information in the Corrective Statements to young people and
young African Americans.
Interest of Proposed Amicus Curiae
Viacom’s interest in this action is limited to the issue of the sufficiency, including
the structure, of the remedies proposed. In this Court’s Opinion filed November 27, 2012, the
Court made clear that the types of media Defendants used to convey commercial messages had
“changed dramatically” since 2006. Television media has also changed dramatically in the fortythree
years since Defendants broadcast their deceptive messages on television. The Proposed
Consent Order does not reflect those changes.
As explained in Viacom’s brief, Viacom’s targeted networks may provide a more
effective means than any of CBS, ABC, or NBC, for redressing Defendants’ conduct among
young people, including Black young people—the demographics that were targeted by
Defendants in their misleading advertising. For these reasons, and as explained more fully in its
brief, Viacom respectfully requests that the Court (1) deny the motion for approval of the
Proposed Consent order; (2) find that Viacom’s networks are appropriate vehicles for the
Corrective Statements, and (3) direct the parties, with the assistance of the Special Master and
with input from amici curiae including Viacom, to conduct a comprehensive inquiry into, inter
alia, the distribution of the Corrective Statements to the target audiences, the quantity of
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advertisements that can be purchased on each such network for equivalent resources, and the
days and times of the broadcast of the Corrective Statements to ensure the effective distribution
of the corrective messages to the target audiences. In the alternative, Viacom requests that the
Proposed Consent Order be amended to require that a portion of Defendants’ advertising “spend”
be used to purchase spots on Viacom’s networks. Viacom believes this simple modification of
the order as it currently stands will increase the probability that the Corrective Statements are
transmitted to young people including young African Americans.
This Court has the sole discretion to determine whether, and the extent to which, a
proposed amicus may participate. See Hard Drive Prods., Inc. v. Does 1-1,495, 892 F. Supp. 2d
334, 337 (D.D.C. 2012). In particular, the Court may consider whether a proposed amicus can
provide “unique information or perspective that can help the court beyond the help” the parties
have provided, id., or whether the proposed amicus has “relevant expertise and a stated concern
for the issues at stake . . . .” See District of Columbia v. Potomac Elec. Power Co., 826 F. Supp.
2d 227, 237 (D.D.C. 2011). Here, Viacom’s brief and the supporting declarations provide
significant factual support demonstrating Viacom’s experience, concerns, and unique
perspective, including its proven ability to convey health and wellness information to younger
and Black populations.
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For the foregoing reasons, Viacom respectfully requests leave to participate in this
action as amicus curiae with leave to file the attached brief and supporting affidavits.
Dated: January 27, 2014
Respectfully Submitted,
FRIEDMAN KAPLAN SEILER &
ADELMAN LLP
/s/ Kent K. Anker
Kent K. Anker (D.C. Bar No. NY0131)
Emily A. Stubbs, Counsel for Movant, Pro Hac
Vice Pending
7 Times Square
New York, New York 10036-6516
(212) 833-1100
Attorneys for Amicus Viacom Inc.
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CERTIFICATE OF SERVICE
I hereby certify that on this 27th day of January, 2014, a copy of the foregoing
Motion For Leave To Participate As Amicus Curiae was filed electronically through the Court’s
CM/ECF system.
__ /s/ Kent K. Anker
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2920897.1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
—————————————————————— x
UNITED STATES OF AMERICA,
Plaintiff,
and
TOBACCO-FREE KIDS ACTION FUND, et al.,
Plaintiff-Intervenors,
- v -
PHILIP MORRIS USA, INC.
(f/k/a Philip Morris, Inc.), et al.,
Defendants.
::::::::::::::::::
Civil Action No. 99-2496 (GMK)
—————————————————————— x
AMICUS BRIEF OF VIACOM INC.
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2920897.1
Viacom Inc. (“Viacom”), on behalf of its television networks MTV®, MTV2®,
VH1®, Comedy Central® and BET®, files this amicus brief urging the Court to deny the motion
to approve the proposed Consent Order Implementing the Corrective Statements Remedy under
Order #1015 and Order #34-Remand, or, in the alternative, modify the proposed Consent Order,
as set forth below.
INTRODUCTION
After seven years of litigation and over sixteen-hundred pages of factual findings,
this Court ordered Defendants to remedy their decades of false statements – which the Court
found had been targeted, in large part, at the young adult and Black demographics – by
correcting those false statements. In its Original Order, this Court held that the dissemination of
the Corrective Statements through television and other means was intended to “ensure maximum
exposure to consumers, potential consumers, and the general public.” Although the Corrective
Statements envisioned by the Court are intended to remedy the Defendants’ past deception, the
Proposed Consent Order as currently drafted may pervert – rather than serve – that purpose.
The Proposed Consent Order provides that Defendants shall cause Corrective
Statements to be broadcast through 260 spots on CBS, ABC, or NBC between Monday and
Thursday, from 7 p.m. to 10 p.m., over one year. This ignores the reality that much of the
programming on those networks during those hours is not geared to reach youth and African
American demographics. For example, the median age of viewers of CBS, ABC, and NBC is
between 50 and 60 years old, and only 1%-2% of those networks’ primetime viewers are Black
adults ages 18 to 34. Moreover, pursuant to the Proposed Consent Order, Defendants could
purchase the lowest-cost airtime on the least-viewed shows on CBS, ABC, and NBC and further
minimize the impact of the Corrective Statements on young adult and Black viewers.
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The Court should not countenance this approach. Defendants should be required
to target the young adult and Black markets with their Corrective Statements, just as they
targeted young people and young African Americans with their deceptive advertising and
marketing campaigns. Viacom’s networks MTV, MTV2, VH1, Comedy Central, and BET are
specifically targeted to, and in fact reach, young adults including young Black viewers.
Moreover, Viacom’s networks take a leadership role in promoting the health and wellness of
their audiences, efforts which have produced a demonstrable impact including, among many
other initiatives, successfully educating young adults concerning pregnancy, breast cancer, and
sexually transmitted diseases. Broadcasting the Corrective Statements on these Viacom
networks, which have long-served as a successful conduit for similar such messages, is a natural
fit to achieve the salutary purpose of the Court’s remedy.
Further, for each view of an advertising message, the average cost on Viacom’s
networks during prime time is a third the cost of the major networks during prime time. The
differential becomes significantly larger when focusing on a younger audience because such a
high percentage of Viacom’s networks’ viewers are young adults, including young African
Americans, compared to the major networks. Thus, on average, the cost of obtaining one
thousand views of a message by people ages 18 to 34 on MTV, MTV2, VH1, Comedy Central,
and BET is just one-seventh the cost of the major networks.
For these reasons, Viacom respectfully requests that the Court (1) deny the
motion for approval of the Proposed Consent Order; (2) find that Viacom’s networks are
appropriate vehicles for the Corrective Statements; and (3) direct the parties with the assistance
of the Special Master and input from amici curiae to conduct a comprehensive inquiry into the
most effective distribution of the Corrective Statements to the target audiences. Alternatively,
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Viacom requests that the Court modify the Proposed Consent Order to require Defendants to
utilize 20% of its advertising “spend” on MTV, MTV2, VH1, Comedy Central, and/or BET.
This straightforward modification of the Proposed Consent Order would target young and Black
consumers and potential consumers and therefore more effectively remediate Defendants’
wrongful conduct.
ARGUMENT
I.
MTV, MTV2, VHI, COMEDY CENTRAL AND BET ARE APPROPRIATE
VEHICLES FOR DISTRIBUTION OF THE CORRECTIVE STATEMENTS
TO HELP ACHIEVE THE COURT’S REMEDIAL PURPOSE
In Order #1015, the Court ordered that certain Corrective Statements would be
run five times per week for one year on CBS, ABC, or NBC, as well as in major newspapers, on
Defendants’ websites, and through other means. United States v. Philip Morris, 449 F. Supp. 2d
1, 939-41 (D.D.C. 2006) (the “Original Opinion”). These media were chosen in order to
“structure a remedy which uses the same vehicles which Defendants have themselves historically
used to promulgate false smoking and health messages.” Id. at 928. The purpose of the
dissemination of the Corrective Statements is “to ensure maximum exposure to consumers,
potential consumers, and the general public.” Id. at 939.
As the Court found in its Original Opinion, many of the “potential consumers”
targeted by Defendants in their media and advertising campaigns were and continue to be youth:
“[H]istorically, as well as currently, Defendants do market to young people, including those
under twenty-one, as well as those under eighteen. Defendants’ marketing activities are intended
to bring new, young, and hopefully long-lived smokers into the market in order to replace those
who die (largely from tobacco-caused illnesses) or quit.” Id. at 691. Defendants used their
knowledge of young people to create highly sophisticated and appealing marketing campaigns
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targeted to lure them into starting smoking and later becoming nicotine addicts. Id. Defendants
also targeted young African Americans. The record is replete with evidence that the tobacco
companies specifically targeted young African Americans with targeted brands and programs to
lure them into starting smoking. See, e.g., id. at 582-584, 595-602, 626-633. Thus, to the extent
that today’s young people are, like young people before them, “potential consumers” of tobacco
products, they are an important part of the intended audience for the Corrective Statements.
In addition, young people and African Americans use tobacco products in
significant numbers. A recent report by the CDC states that 18.9% of people between 18 and 24,
and 22.1% of people between 25 and 44, are current smokers.1 The same report states that
19.4% of Blacks are smokers. Id. Accordingly, as consumers and potential consumers, young
people and African Americans are an important audience for the Corrective Statements.
A. Viacom’s Young Adult and African-American Oriented Television Networks
MTV, MTV2, VH1, Comedy Central and BET Are Appropriate Vehicles
for Distribution of the Corrective Statements.
Although the Court intended the Corrective Statements to be disseminated
through the “same vehicles” Defendants historically used to promulgate false smoking and health
messages, the Court should not now limit the broadcast of the Corrective Statements to the exact
same television networks Defendants used as long as forty years ago. Indeed, in 2012, this Court
recognized that the types of media used by Defendants had “changed dramatically” in the six
years after it issued its original opinion. United States v. Philip Morris, 907 F. Supp. 2d 1, 27
(D.D.C. 2012). Television media has likewise changed dramatically in the 43 years that have
elapsed since January 2, 1971, when Defendants last advertised their products on television,
1 Center for Disease Control, Current Cigarette Smoking Among Adults — United States, 2011, Morbidity and
Mortality Weekly Report, November 9, 2012, available at
www.cdc.gov/mmwr/preview/….
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including through the introduction of Viacom’s networks focused on youth and African
American demographics.
As such, Viacom’s youth-targeted, including African American youth-targeted,
television networks MTV, MTV2, VH1, Comedy Central, and BET are quintessentially
appropriate for the distribution of the Corrective Statements. For example, MTV specifically
targets the “millennial” generation. See Decl. of Berj Kazanjian, ¶ 4. MTV2 targets male
“millennials” aged 15 to 25. Id. ¶ 5. VH1 features music and pop culture-driven content
targeting adults aged 18 to 49. Id. ¶ 6. Comedy Central features award-winning “fake news”
programs, stand-up, and sketch comedy with a core male millennial audience and numerous topranked
shows for males between 18 and 34. Id. ¶ 7. BET is the nation’s leading television
network providing entertainment, music, news and public affairs programming to African-
American audiences, and the BET television channel focuses on young Black adults. See Decl.
of Matthew Barnhill, ¶ 4.
The median age of the Viacom networks’ viewers reflects those networks’ focus
on younger people. According to Nielsen Media Research, the median age of viewers of MTV is
just 22.12; the median age of MTV2 viewers is 22.97; the median age of VH1’s viewers is 23.87;
the median age of Comedy Central’s viewers is 29.92; and the median age of BET’s viewers is
35.7. Kazanjian Decl. ¶ 8; Barnhill Decl. ¶ 5.
By contrast, the major television networks’ viewers skew decades older.
According to Nielsen, the median age of viewers of CBS is 57.85. Kazanjian Decl. ¶ 9. The
median age of viewers of ABC is 54.38, while the median age of NBC’s viewers is only slightly
younger at 51.85. Id. Even FOX, which seeks to be included in the Proposed Consent Order as
a “major network,” has viewers with a median age of 48.4.
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Moreover, according to Nielsen, of television networks with more than 50 million
subscribers in 2013, Viacom networks comprise four of the five with the highest percentage of
viewers between ages 18 and 34. Id. ¶ 10. Among such networks, MTV has the highest
percentage of viewers ages 18 to 34 (46.75% of MTV’s viewers in 2013). Comedy Central has
the second highest percentage of viewers ages 18 to 34 (44.25% of its viewers in 2013). Just
slightly lower, and third and fifth respectively, 42.175% of viewers of MTV2 in 2013 were 18 to
34 years old, and 40.15% of viewers of VH1 were 18 to 34. Id.
CBS, ABC, and NBC have significantly lower percentages of young viewers.
During “Prime Time” hours (8-11 p.m. Mondays through Saturdays, and 7-11 p.m. on Sundays),
the percentage of CBS’s viewers in 2013 who were 18 to 34 years old was just 9.875% – that is,
more than 9 out of 10 viewers of CBS were outside the 18 to 34 age bracket. Id. ¶ 11. Only
14.6% of ABC’s viewers in 2013 during Prime Time were 18 to 34, while NBC was slightly
higher with 15.4% of its viewers in 2013 in the 18 to 34 age bracket. Id.
In addition, the audiences of CBS, ABC, and NBC are not young Black viewers.
Of the people who watched CBS in 2013, only 1% were Black viewers between 18 and 34.
ABC’s and NBC’s audiences were each comprised of only 2% of such viewers. Barnhill Decl.
¶ 8. By contrast, BET, which tailors its programming to reach the Black community, has an
audience which is 80% Black. Id. ¶ 7. And, of BET’s audience, 22% are Black viewers between
18 and 34. Id.
Thus, to the extent the Court’s 2006 Order was intended to remediate Defendants’
decades of youth- and Black-targeted marketing by communicating to today’s youth, the
Proposed Consent Order may well fail to meet that purpose. The Court should reconsider the
vehicles for distribution of the Corrective Statements by including Viacom’s networks MTV,
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MTV2, VH1, Comedy Central and BET in order to increase the likelihood those messages are
received by today’s young, including young Black, viewers.
B. Viacom’s Leadership in the Health and Wellness of Young People and African
Americans Will Serve the Salutary Purpose of the Court’s Remedial Order.
Viacom’s networks take a strong leadership role in actively seeking to protect the
health and wellness of today’s youth. In short, the young people including young African
American people of today look to Viacom’s networks such as MTV and BET for health and
wellness information – and Viacom’s campaigns have produced remarkable results.
MTV’s mission is to be the cultural home of the millennial generation, and one of
the key ways the network pursues this goal is by regularly engaging and activating America’s
youth on the biggest challenges facing their generation. The MTV public affairs department
leads these efforts – “using MTV’s superpowers for good” – and oversees a number of multiplatform
social change initiatives, many of which are focused on health. Viacom’s campaigns
include the Emmy-winning “It’s Your (Sex) Life” and “GYT: Get Yourself Tested” – in
partnership with the Kaiser Family Foundation and CDC – which have reached over 200 million
young people on sexual health issues. See Viacommunity, Annual Report 2012, at 30, available
at media.viacom.com/viacommu…. These
campaigns have been credited with helping to significantly reduce teen pregnancy and increase
STD testing, nationally.2 Id. MTV’s Peabody-winning initiative “Half of Us” has reached
millions of college students on mental health issues and helped tens of thousands connect to lifesaving
help. Id. at 44. Likewise, BET’s “RAP IT UP” campaign educates the African American
2 See also Melissa S. Kearney & Phillip B. Levine, Media Influences on Social Outcomes: The Impact of MTV’s 16
and Pregnant on Teen Childbearing, National Bureau of Economic Research (Working Paper 19795) (Abstract),
January 2014, available at www.nber.org/papers/w1979… (“We find that 16 and Pregnant led to more searches
and tweets regarding birth control and abortion, and ultimately led to a 5.7 percent reduction in teen births in the 18
months following its introduction. This accounts for around one-third of the overall decline in teen births in the
United States during that period.”) (emphasis added); Annie Lowrey, MTV’s ‘16 and Pregnant,’ Derided by Some,
May Resonate as a Cautionary Tale, N.Y. Times, Jan. 13, 2014 (discussing same).
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community about HIV/AIDS and sexual health while BET’s “Goes Pink” campaign educates the
community about the specific risks breast cancer poses to Black women. Id. at 33, 45.
Viacom’s networks are leaders in the field of social change focused on the health
and wellness of young people including young African Americans. The Viacom networks are
thus a natural fit for dissemination of the Corrective Statements to these populations.
C. The Current Structure of the Consent Order Creates a Perverse Incentive for
Defendants to Purchase Advertisements During Broadcasts with Few Young and
African American Viewers.
As it is currently structured, the Proposed Consent Order creates for the
Defendants the perverse incentive to place the Corrective Statements on the major networks’
lowest-cost and least-viewed television shows which are, in turn, viewed by only a negligible
percentage of the young adults and young Black viewers. Thus, to the extent the Court’s 2006
Order was intended to remediate Defendants’ decades of youth- and Black-targeted marketing by
communicating to today’s youth and Black population the falsity of Defendants’ statements, this
“solution” would be wildly wasteful and very likely ineffectual.
CBS, ABC, and NBC each airs numerous television series between 7 p.m. and 10
p.m. on Mondays through Thursdays that – whether by design or otherwise – are viewed by a
minimal portion of young adult and Black viewers in this country. Kazanjian Decl. ¶ 12. For
example, NBC’s program “Sean Saves the World,” which aired at 9 p.m. on Thursday evenings
during the fourth quarter of 2013, was seen by only 0.77% of 18 to 34 year olds. The median
age of persons watching that show was 51.4 years old. Id. ¶ 12(a). Numerous nighttime weekly
broadcast network series are seen by similar demographics and with minimal exposure to young
people. See, e.g., id. ¶ 12(b) (viewers of NBC’s “Welcome to the Family” had a median age of
48.2 and the program reached only 0.81% of 18 to 34 year olds); id. ¶ 12(c) (viewers of NBC’s
“The Michael J. Fox Show” had a median age of 51.8 and the series reached only 0.98% of 18 to
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34 year olds); id. ¶ 12(d) (viewers of ABC’s “Once Upon a Time in Wonderland” had a median
age of 48.2 and the series reached 1.03% of 18 to 34 year olds); id. ¶ 12(e) (viewers of ABC’s
“Trophy Wife” had a median age of 50.1 and the series reached 1.11% of 18 to 34 year olds); id.
¶ 12(f) (viewers of CBS’s “Two and a Half Men” had a median age of 54.6 and the series
reached 1.46% of 18 to 34 year olds). And, according to Nielsen, for prime time programs aired
in 2013 on CBS, ABC, and NBC, only 1%-2% of viewers are Black young adults ages 18 to 34.
See Barnhill Decl. ¶ 10 (CBS: 1%; ABC: 2%; NBC: 2%).
As the Proposed Consent Order is currently phrased, Defendants could purchase
airtime for the Corrective Statements during these programs or similar programs and be in full
compliance with the Order, yet fail to reach a critical mass of young or Black viewers. By
contrast, if Defendants applied identical resources to Viacom networks, that shift in approach
would substantially increase the probability that the messages in the Corrective Statements
would reach the desired populations.
D. Applying Identical Resources to Viacom’s Networks Will Deliver Significantly
More Exposure for the Corrective Statements to Younger and Black Viewers.
Because, as set forth above, the portion of 18 to 34 year old viewers watching
major network television is very small, using only the major networks would be a highly
inefficient means of delivering the Corrective Statements to young adult viewers. By contrast,
Viacom’s networks’ high percentage of young adult viewers including young Black viewers
means that the Corrective Statements can be delivered to these audiences much more efficiently
and effectively.
As a general matter, delivering a message to the general public on the major
networks costs three times as much as Viacom’s networks. According to Nielsen Monitor Plus,
the average cost to obtain 1,000 views of a message by the general public on the major networks
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(including FOX) in Prime Time hours is $30.38, while the average cost of 1,000 views on
Viacom’s networks in Prime Time is just $9.16. See Halley Decl. ¶¶ 5, 6.
Moreover, if the focus of delivery is young adults, the cost differential grows
dramatically, as a result of the large percentage of Viacom’s audience in the 18 to 34 age bracket
in contrast to the major networks. The average cost to obtain 1,000 views of a message by
persons ages 18 to 34 during Prime Time hours on the major networks (including FOX) is
$141.76 – while delivering 1,000 views of the same message by 18 to 34 year olds in Prime
Time on Viacom’s networks costs an average of just $18.33 – which is less than one-seventh the
cost on the major networks. Id.
In other words, if the Court intends the Corrective Statements to reach a younger
including younger Black audience, it will be far more effective to use the same ad dollars needed
to run the spots on the major broadcast networks to purchase spots on Viacom’s networks, since
the same advertising “spend” will deliver significantly more exposure of the Corrective
Statements to that audience than the major networks.
II.
THE COURT SHOULD DIRECT THE PARTIES TO RECONSIDER THE
APPROPRIATE CHANNELS FOR DISTRIBUTION OF THE CORRECTIVE
STATEMENTS OR, ALTERNATIVELY, MODIFY THE CONSENT ORDER
For the reasons set forth above, Viacom respectfully requests that the Court
(1) deny the motion for approval of the Proposed Consent order; (2) find that Viacom’s networks
are appropriate vehicles for the Corrective Statements, and (3) direct the parties, with the
assistance of the Special Master and with input from amici curiae including Viacom, to conduct
a comprehensive inquiry into, inter alia, the distribution of the Corrective Statements to the
target audiences, the quantity of advertisements that can be purchased on each such network for
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equivalent resources, and the days and times of the broadcast of the Corrective Statements to
ensure the effective distribution of the corrective messages to the target audiences.
In the alternative, Viacom requests that the Proposed Consent Order be amended
to require a portion of Defendants’ advertising “spend” be used to purchase spots on Viacom’s
networks. As explained above, Viacom believes this simple modification of the order as it
currently stands will increase the probability that the Corrective Statements are transmitted to
young people including young African Americans.
Viacom’s proposed new language for Sections III(1) & (2) of the Consent Order
is set forth below, with the changed language highlighted in bold and underlined:
“III. Corrective Statements on Television
1. Each Defendant will place the Corrective
Statements (“spots”) on its choice of the three major television
networks – CBS, ABC, or NBC. The TV spots will run at least 4
times per week, subject to the availability of network time and
upon approval of the network(s) on which the spots will air. The
TV spots to be run each week on the three major networks will
be run by each Defendant at its choice between 7:00 p.m. and
10:00 p.m. in the time zone in which the spot airs, between
Monday and Thursday, for one year.
2. Each week, Defendants will place on their choice
of MTV, MTV2, VH1, Comedy Central and/or BET, the
maximum number of spots available for the median cost of one
7:00 to10:00 p.m. Monday-Thursday spot on the three major
television networks, with such spots on MTV, MTV2, VH1,
Comedy Central and/or BET to run at each Defendant’s choice
of times during the hours 7:00 pm to 12:00 a.m. in the time
zone in which the spot airs, between Monday and Thursday,
for one year.”3
3 Viacom’s proposal contains different hours for broadcast of the Correct Statements because many of the shows
most popular with the target audiences are shown after 10:00 p.m. For example, Comedy Central’s late night “fake
news” shows “The Daily Show with John Stewart” and “The Colbert Report” are aired at 11:00 p.m. and 11:30 p.m.
respectively, and Tosh.0 which has been ranked as #1 cable program with males 18-24, is aired at 10:00 p.m. See,
e.g., Viacom, Pulse (Quarter Ended September 30, 2013), available at files.shareholder.com/dow…
2923066650×0x706656/B9122A57-6CC2-44BA-9491-
D3AA32291D4D/2013_Q4_Pulse_Investor_Newsletter.pdf.
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12
2920897.1
CONCLUSION
For the foregoing reasons, Viacom urges the Court to (1) deny the motion for
approval of the Proposed Consent Order; (2) find that Viacom’s networks are appropriate
vehicles for the Corrective Statements; and (3) direct the parties, with the assistance of the
Special Master and with input from amici curiae including Viacom, to conduct a comprehensive
inquiry into, inter alia, the distribution of the Corrective Statements as set forth above, or, in the
alternative, modify the Proposed Consent Order as proposed by Viacom and in order to better
effectuate the remedial purposes of Order #1015 and Order #34-Remand.
Dated: January 27, 2014
Respectfully Submitted,
FRIEDMAN KAPLAN SEILER &
ADELMAN LLP
/s/ Kent K. Anker
Kent K. Anker (D.C. Bar No. NY0131)
Emily A. Stubbs, Counsel for Movant, Pro Hac
Vice Pending
7 Times Square
New York, New York 10036-6516
(212) 833-1100
Attorneys for Amicus Viacom Inc.
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2920897.1
CERTIFICATE OF SERVICE
I hereby certify that on this 27th day of January, 2014, a copy of the foregoing
Amicus Brief of Viacom Inc. was filed electronically through the Court’s CM/ECF system.
__/s/ Kent K. Anker
Case 1:99-cv-02496-GK Document 6032-1 Filed 01/27/14 Page 14 of 14

2920521.3
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
————————————————————– —x
UNITED STATES OF AMERICA,
Plaintiff,
and
TOBACCO-FREE KIDS ACTION FUND, et al.,
Plaintiff-Intervenors,
- v -
PHILIP MORRIS USA, INC.
(f/k/a Philip Morris, Inc.), et al.,
Defendants.
::::::::::::::::::
Civil Action No. 99-2496 (GMK)
—————————————————————– x
DECLARATION OF JOHN HALLEY
I, John Halley, hereby state:
1. I submit this declaration in support of the Amicus Brief of Viacom Inc. on
behalf of Viacom’s television networks MTV®, MTV2®, VH1®, Comedy Central® and BET®.
2. I am Executive Vice President and Chief Operating Officer of Ad Sales
for Viacom Media Networks, a division of Viacom Inc. (“Viacom”).
3. In the television advertising industry, “cost per thousand” or “CPM” is a
standard measure used by both sellers and purchasers of advertising to compare the relative cost
effectiveness of placing an advertisement or message on different programs, stations, or media.
CPM is the cost of delivering 1,000 ad impressions with a specific advertisement or message.
CPM can be measured with respect to particular demographics including, for example, persons
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2
2920521.3
between 18 and 34 years old. In addition, an “ad impression” is a measure of a single viewing of
an advertisement or message by a single member of the audience.
4. According Nielsen Monitor Plus, an industry standard resource for
financial and audience intelligence with respect to media communications, the average CPM
(that is, the cost for 1,000 impressions of a particular message) for reaching persons between 18
and 34 years old with an advertisement or message placed on broadcast television during
Primetime Hours1 is as follows:2
Network CPM for Primetime Hours
(18 to 34 Years Old)
CPM for Primetime Hours
(General Household)
ABC $120.18 $23.10
NBC $113.07 $26.66
CBS $171.78 $22.37
FOX $160.82 $49.37
Average of the Above
Broadcast Networks
$141.46 $30.38
5. By contrast, according to Nielsen Monitor Plus, the average CPM for an
advertisement or message placed on Viacom’s networks during those same hours is significantly
lower:3
Network CPM for Primetime Hours
(18 to 34 Years Old)
CPM for Primetime Hours
(General Household)
MTV $20.34 $12.33
MTV2 $11.48 $5.10
VH1 $13.81 $7.27
Comedy Central $19.12 $11.28
BET $26.91 $9.82
Average of the
Above Viacom Networks
$18.33 $9.16
1 Primetime Hours include, for CBS, ABC, and NBC, the hours between 8 p.m. and 11 p.m. on Mondays through
Saturdays and between 7 p.m. and 11 p.m. on Sunday evenings, and, for FOX, the hours between 8 p.m. and 10 p.m.
on Mondays through Saturdays and between 7 p.m. and 10 p.m. on Sunday evenings.
2 Source: Nielsen Monitor Plus, CPM Data, 2013 Broadcast Season (10/01/2012 through 09/29/13).
3 Source: Nielsen Monitor Plus, CPM Data, 2013 Broadcast Season (10/01/2012 through 09/29/13).
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2920465.6
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
————————————————————– —x
UNITED STATES OF AMERICA,
Plaintiff,
and
TOBACCO-FREE KIDS ACTION FUND, et al.,
Plaintiff-Intervenors,
- v -
PHILIP MORRIS USA, INC.
(f/k/a Philip Morris, Inc.), et al.,
Defendants.
::::::::::::::::::
Civil Action No. 99-2496 (GMK)
—————————————————————– x
DECLARATION OF BERJ KAZANJIAN
I, Berj Kazanjian, hereby state:
1. I submit this declaration in support of the Amicus Brief of Viacom Inc. on
behalf of Viacom’s television networks MTV®, MTV2®, VH1®, Comedy Central® and BET®.
2. Viacom Inc. (“Viacom”) is a leading global entertainment content
provider. Viacom Media Networks (“VMN”), a division of Viacom, operates the media
networks of Viacom through four brand groups based on target audience, similarity of
programming and other factors: Music & Logo, Nickelodeon, Entertainment, and BET
Networks.
3. I am a Senior Vice President for Ad Sales Research at MTV Networks.
4. MTV, part of VMN’s Music & Logo Group, is a leading global brand,
multimedia destination and content producer targeting the millennial generation, music fans and
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2
2920465.6
artists. MTV offers content built around compelling storytelling, music discovery and activism
across television and other media platforms.
5. MTV2, part of VMN’s Music & Logo Group, offers a music and lifestyle
destination with content targeting male “millennials” aged 15 to 25 and featuring original music,
live-action sports and irreverent lifestyle programming.
6. VH1, part of VMN’s Music & Logo Group, features music and pop
culture-driven content targeting adults aged 18 to 49, including a variety of original
programming primarily focused on music artists, real life stories and celebrities.
7. Comedy Central, part of VMN’s Entertainment Group, is focused on
comedy, featuring award-winning satirical news programs, stand-up and sketch comedy, sitcoms
and animated programming, delivered via a linear cable television and other media, and features
a core male millennial audience and numerous top-ranked shows for males between 18 and 34.
Median Age of Network Viewers
8. According to Nielsen Media Research (“Nielsen”),1 the median age of a
viewer of MTV, MTV2, VH1, and Comedy Central is generally between 22 and 31. For
example, in 2013:2
Network Median Age of Viewer (in Years)
MTV 22.975
MTV2 22.125
VH1 31.0
Comedy Central 29.90
1 Nielsen is a company which measures media audiences, including for television and those measurements are a
standard within the television advertising industry.
2 The references to the year 2013 in this declaration are based on a calculation of the average of the respective metric
for the first, second, third, and fourth quarters of 2013. (Source: Nielsen, Live+SD viewing. Program Based
Dayparts (1/4 hour avg.). Each network’s total day except Broadcast Prime (M-Sa, 8-11p and Su, 7-11p), Fox Prime
(M-Sa, 8-10p & Su 7-10p). Bases: P2+ for median age. 1Q’13-4Q’13.)
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2920465.6
9. By contrast, the median age of a viewer of a traditional broadcast network
is generally between 48 and 58. For example, in 2013:
Network Median Age of Viewer (in Years)
CBS 57.85
ABC 54.375
NBC 51.85
FOX 48.4
Percentage of Viewers Between 18 and 34 Years Old3
10. According to Nielsen, of all networks in the United States with 50 million
or more subscribers, Viacom networks comprise four of the five networks with the highest
percentage of viewers between the ages of 18 and 34. Those networks are MTV, Comedy
Central, MTV2, and VH1. For example, in 2013:
a. 46.75 percent of the viewers of MTV were between 18 and 34
years old. MTV’s viewership was comprised of a greater percentage of such
viewers than all other networks in the United States with more than 50 million
subscribers;
b. 44.375 percent of viewers who watched Comedy Central were
between 18 and 34 years old. Comedy Central’s viewership was comprised of the
second highest percentage of such viewers (behind MTV) of all networks in the
United States with more than 50 million subscribers;
c. 42.125 of viewers of MTV2 were between 18 and 34 years old.
MTV2 viewership was comprised of the third highest percentage of such viewers
3 Source: Nielsen, Live+SD viewing. Program Based Dayparts (1/4 hour avg). Each network’s total day except
Broadcast Prime (M-Sa, 8-11p & Su, 7-11p), Fox Prime (M-Sa, 8-10p & Su 7-10p). Bases: P2+ for median age.
1Q’13-4Q’13.
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4
2920465.6
(behind MTV and Comedy Central) of all networks in the United States with
more than 50 million subscribers; and
d. 40.175 percent of viewers of VH1 were between 18 and 34 years
old. VH1’s viewership was comprised of the fifth highest percentage of such
viewers of all networks in the United States with more than 50 million
subscribers.
11. By contrast, according to Nielsen, the CBS, ABC, NBC, and FOX
broadcast networks had a significantly lower percentage of viewers between 18 and 34 years old.
In particular, in 2013, during Primetime Hours,4 persons between 18 and 34 years old comprised
between 10 percent and 20 percent of the viewership of those networks:
Network Percentage of Viewers Between 18 and 34 years old
CBS 9.725
ABC 13.45
NBC 15.5
FOX 19.975
12. According to Nielsen, during Primetime Hours, CBS, ABC, NBC, and
FOX broadcast networks offer programming (and the opportunity to place advertisements on
such programming) with limited exposure to persons between 18 and 34 years old. In the fourth
quarter of 2013 (between September 23, 2013 and December 29, 2013), those networks featured
nineteen regularly scheduled television series between Mondays and Thursdays during the hours
between 8:00 p.m. and 10 p.m. that each reached less than 1.5 percent of the 18 and 34 year olds
in the United States. For example:5
4 Primetime Hours include the hours between 8 p.m. and 11 p.m. on Mondays through Saturdays and between 7 p.m.
and 11 p.m. on Sunday evenings.
5 Source: Nielsen Media Research National Average Commercial Minute MIT. Star Media ACM MultiTrak
Reporting System Viewing Type: Commercial Live+3 (C3). Broadcast Prime = M-Sa 8p-11p; Su 7p-11p. No
Strict Daypart. 4 NET Broadcast = ABC, CBS, NBC, FOX. National US Ratings and Impressions. 09/23/13-
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5
2920465.6
a. The new (non-repeated) episodes of NBC’s program “Sean Saves
the World” shown on Thursday evenings between 9:01 p.m. to 9:30 p.m. during
that period were viewed, on average, by 0.77% of the persons between 18 and 34
years old in the United States (an average of 523,000 of such persons). The
median age of viewers of that show during that period was 51.4 years old;
b. The new (non-repeated) episodes of NBC’s program “Welcome to
the Family” shown on Thursday evenings between 8:31 p.m. and 9:01 p.m. during
that period were viewed, on average, by 0.81% of the persons between 18 and 34
years old in the United States (an average of 548,000 of such persons). The
median age of viewers of that show during that period was 48.2 years old;
c. The new (non-repeated) episodes of NBC’s program “The Michael
J. Fox Show” shown on Thursday evenings between 9:30 and 10:00 p.m. during
that period were viewed, on average, by 0.98% of persons between 18 and 34
years old in the United States (an average of 661,000 such persons). The median
age of viewers of that show during that period was 51.8 years old;
d. The new (non-repeated) episodes of ABC’s program “Once Upon
a Time in Wonderland” shown on Thursday evenings between 8:00 p.m. and 9:00
p.m. during that period were viewed, on average, by 1.03% of persons between 18
and 34 years old in the United States (an average of 697,000 such persons). The
median age of viewers of that show during that period was 51.8 years old;
e. The new (non-repeated) episodes of ABC’s program “Trophy
Wife” shown on Tuesday evenings between 9:31 p.m. and 10:00 p.m. during that
12/29/13. Household Median Age (HHLD MED AGE) based on P2+. New episodes only, excludes repeats and
specials.
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Case 1:99-cv-02496-GK Document 6032-3 Filed 01/27/14 Page 6 of 6

2920558.3
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
————————————————————– —x
UNITED STATES OF AMERICA,
Plaintiff,
and
TOBACCO-FREE KIDS ACTION FUND, et al.,
Plaintiff-Intervenors,
- v -
PHILIP MORRIS USA, INC.
(f/k/a Philip Morris, Inc.), et al.,
Defendants.
::::::::::::::::::
Civil Action No. 99-2496 (GMK)
—————————————————————– x
DECLARATION OF MATTHEW BARNHILL
I, Matthew Barnhill, hereby state:
1. I submit this declaration in support of the Amicus Brief of Viacom Inc. on
behalf of Viacom’s television networks MTV®, MTV2®, VH1®, Comedy Central® and BET®.
2. Viacom Inc. (“Viacom”) is a leading global entertainment content
provider. Viacom Media Networks (“VMN”), a division of Viacom, operates the media
networks of Viacom through four brand groups based on target audience, similarity of
programming and other factors: Music & Logo, Nickelodeon, Entertainment, and BET
Networks.
3. I am the Executive Vice President of Corporate Market Research at BET
Networks, the leading provider of entertainment for the African-American audience and
consumers of Black culture globally.
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2
2920558.3
4. BET is the flagship channel of BET Networks and the nation’s leading
television network providing entertainment, music, news, and public affairs programming to
African American audiences, including young African American adults. During each quarter of
2013, BET reached, on average, 16.9 million persons between 18 and 34 years old.
Median Age of Network Viewers
5. According to Nielsen Media Research (“Nielsen”),1 in 2013, the median
age of a viewer of BET was 35.7.2
6. By contrast, according to Nielsen, the median age of a viewer of a
traditional broadcast network is generally between 48 and 58. For example, in 2013:
Network Median Age of Viewer
FOX 48.4
NBC 51.85
ABC 54.375
CBS 57.85
Percentage of Young Adult Black Viewers3
7. According to Nielsen, in 2013, of all viewers that watched BET,
22 percent of those persons were Black viewers between 18 and 34 years old. And, of all
viewers between 18 and 34 who watched BET in 2013, approximately 81% percent of those
persons were Black viewers. During Primetime Hours,4 BET reached more Black teens than any
other network, including ABC, NBC, and CBS.
1 Nielsen is a company which measures media audiences, including for television and those measurements are a
standard within the television advertising industry.
2 The references to the year 2013 in this declaration are based on a calculation of the average of the respective metric
for the first, second, third, and fourth quarters of 2013. (Source: Nielsen, Live+SD viewing. Program Based
Dayparts (1/4 hour avg.). Each network’s total day except Broadcast Prime (M-Sa, 8-11p and Su, 7-11p), Fox Prime
(M-Sa, 8-10p & Su 7-10p). Bases: P2+ for median age. 1Q’13-4Q’13.)
3 Source: Nielsen, Live+SD viewing, CY13 Mon-Sun Primetime % Of Total Audience Composed Of Blacks 18-34.
4 Primetime Hours include the hours between 8 p.m. and 11 p.m. on Mondays through Saturdays and between 7 p.m.
and 11 p.m. on Sunday evenings.
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Case 1:99-cv-02496-GK Document 6032-4 Filed 01/27/14 Page 3 of 3

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