The nation s most influential advocacy organization protecting children against sex, violence and profanity in entertainment

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1 Timothy F. Winter, President 707 Wilshire Blvd., Suite 2075, Los Angeles, CA Tel: (213) Fax: (213) The nation s most influential advocacy organization protecting children against sex, violence and profanity in entertainment April 13, 2015 Supreme Court of California Earl Warren Building at Civic Center Plaza 350 McAllister Street San Francisco, CA Re: Amicus Letter in Support of Review in Fischer, et al. v. Time Warner Cable Inc., et al. S / 2d Appellate Case No. B / LASC Case No. BC TO THE HONORABLE CHIEF JUSTICE CANTIL-SAKAUYE AND THE HONORABLE JUSTICES OF THE SUPREME COURT OF CALIFORNIA: We submit this amicus curiae letter pursuant to California Rule of Court, rule 8.500(g) to support Appellants Petition for Review of the published decision of the Court of Appeal, Second Appellate District, Division Eight, filed February 23, IDENTITY AND INTEREST OF AMICUS CURIAE Parents Television Council (PTC) is a nonprofit, nonpartisan, grassroots organization dedicated to protecting children and families from graphic sex, violence and profanity in entertainment, with an emphasis on primetime television. Founded in 1995, PTC is a registered 501(c)(3) not-for-profit corporation funded by the charitable contributions from members and other supporters throughout the United States. PTC, with a national membership approaching 1.4 million people, works with television producers, networks, corporate sponsors and government officials in an effort to stem the increasing tide of harmful messages targeted at children. PTC has encouraged the cable television industry directly and has advocated to the industry indirectly via elected and appointed government officials to provide unbundled programming to cable and satellite consumers. The cable and satellite operators currently force subscribers to pay for cable television networks that produce and air material that is harmful, offensive, expensive, unwanted and otherwise unwatched, in order to have access to the cable networks that they do want to have coming into their homes. PTC is joined in this letter by the nine (9) national organizations listed below. These organizations are comprised of consumer groups, family groups, media watchdogs, public policy advocacy groups and faith-based groups which, together, total tens of millions of Americans.

2 Some of these groups are regarded as conservative and others are regarded as liberal. Some are faith-based and others are wholly nonreligious. The fact that such a broad and disparate group of national organizations would come together to join their voices in unison should speak volumes about the critical national importance of this case and its resulting impact on countless Americans across the nation: American Family Association The mission of the American Family Association is to inform, equip, and activate individuals to strengthen the moral foundations of American culture, and give aid to the church here and abroad in its task of fulfilling the Great Commission. Citizens for Community Values CCV is a grassroots organization of citizens who are concerned for the well-being of the community, the strength of its families, and the future of its children. We strive to be a leader in the restoration of those Judeo-Christian moral values upon which this country was founded in hopes of leaving a lasting legacy of citizens endeavoring to foster and maintain healthy, wholesome, safe, and happy communities. Concerned Women for America The mission of Concerned Women for America is to protect and promote Biblical values among all citizens first through prayer, then education, and finally by influencing our society thereby reversing the decline in moral values in our nation. Consumer Federation of America The Consumer Federation of America (CFA) is an association of non-profit consumer organizations that was established in 1968 to advance the consumer interest through research, advocacy, and education. Today, nearly 300 of these groups participate in the federation and govern it through their representatives on the organization s Board of Directors. Decency Enforcement Center for Television Judge Tom North is the founder & president of the Decency Enforcement Center for Television, acronym Decent TV, a nonprofit corporation based in northern Michigan. Decent TV speaks in court cases from the perspective of the nation s citizens who have a constitutional right to regulate, through Congress, what is broadcast into their homes and public places. Illinois Family Institute The Illinois Family Institute (IFI) is an independent 501c(3) non-profit ministry dedicated to upholding and re-affirming marriage, family, life and liberty in Illinois. Since 1992, IFI has worked to advance public policy initiatives consistent with Judeo-Christian teachings and traditions, educating citizens so that they can better influence their local communities and the state.

3 Media Research Center The Media Research Center is a research and education organization operating under Section 501(c)(3) of the Internal Revenue Code. Since 1987, the Media Research Center has been committed to neutralizing left-wing bias in the news media and popular culture. National Center on Sexual Exploitation Founded in 1962, National Center on Sexual Exploitation is the leading national organization opposing pornography by highlighting the links to sex trafficking, violence against women, child abuse, addiction and more. The organization changed its name from Morality In Media to the National Center on Sexual Exploitation early in 2015 to better describe the organization s scope and mission, which is to expose the seamless connection between all forms of sexual exploitation. Public Knowledge Public Knowledge promotes freedom of expression, an open internet, and access to affordable communications tools and creative works. We work to shape policy on behalf of the public interest. Public Knowledge (PK) works at the intersection of copyright, telecommunications, and Internet law, at a time when these fields are converging. PK s experience in all three areas puts it in an ideal position to advocate for policies that serve the public interest. STATEMENT OF THE CASE PTC and its co-sponsors adopt the Petitioners Statement in their Petition for Review. INTRODUCTION Amicus PTC and the cosigners to this letter have read Appellants Petition for Review. We respectfully and urgently call on this Court to grant a comprehensive review of Appellants case. In order to purchase a movie ticket and watch a film at a theater cineplex, you are not also required to purchase a ticket to a Los Angeles Lakers basketball game. In order to purchase a ticket at the Hollywood Bowl to hear the Los Angeles Philharmonic Orchestra, you are not also required to purchase a ticket to a Los Angeles Dodgers baseball game. So why is it that Defendant Time Warner Cable (TWC) requires every one of its subscribers to pay for Lakers and Dodgers channels in order to watch movies, news, or other entertainment programming? The bundling of Dodgers and Lakers channels at a sharply increased cost to the consumer without an opt-out provision has prevented a competitive, open and free market from taking place. TWC has violated the spirit and the letter of fundamental California consumer protection laws, despite affirmatively contracting to be bound by those same state laws. For years TWC has deftly played a shell-game with state and federal authorities to avoid any legal accountability for their blatant anti-consumer behavior. We urge this Court to grant Petitioners request for review in this case.

4 According to the Federal Communications Commission, U.S. consumers are forced to overpay on their monthly cable subscription fees to the tune of more than $100 million per year. The simple reason for this fleecing of the consumer s wallet is that the cable industry in California, and TWC in its enfranchised area, are able to function like a cartel, virtually insulating itself from free market principles and consumer protection laws. The cable industry has successfully employed its version of the children s game Whack- A-Mole by investing millions upon millions of dollars to kill each and every legislative, administrative, judicial or other public policy effort that pops up to expose and end the practice of forced cable network bundling. If the facts of this case could be carefully reconsidered in the light of California consumer protection laws, we firmly believe that the cable industry s cartellike practices would be exposed for the anti-consumer and anti-competitive schemes they truly are; and that a remedy would be granted in accordance with Plaintiffs prayer for relief. ARGUMENT Consumers who subscribe to cable and satellite television services are forced to pay for bundles of network programming, most of which the significant majority of consumers do not want and do not watch. When consumers pay their monthly bill to their cable or satellite distributor, the distributor in turn pays a monthly subscription fee to each cable network in the product bundle. The result is that some cable networks receive upwards of a billion dollars or more per year from subscribers who are forced to pay them for unwanted programming. TWC has prevented free marketplace principles from working, and these anti-competitive principles are effectively fleecing consumers in California with their cartel-like business structure to the tune of tens of millions of dollars every year. According to media reports, sports networks like ESPN can comprise as much as 20% of the wholesale programming cost of an expanded basic cable television subscription, but the channel generates only about 2% of the viewership. The consumer has no ability to unsubscribe or opt-out of paying ESPN (or any other network) its monthly subscription fee. Executives at independent cable networks (i.e., those not owned by cable distributors like TWC, or owned by larger media conglomerates with ownership interests in multiple other cable networks) have told Amicus PTC and cosigners that they are not compensated at a fair market rate for their product, based upon the level of viewership they bring as compared to networks owned by TWC that generate higher fees but lower viewership levels. Not only are many independent programmers severely and detrimentally impacted because they are not able to secure market-based economic terms, but consumers are forced to foot the entire bill without any possible remedy except to cancel their entire cable/satellite service. In order to get vital news or other information, the consumer s only choice is to accept and pay hundreds even thousands of dollars every year for other channels they don t want and don t watch. TWC convinced the state appellate court that California s consumer protection law was preempted by federal law. We respectfully but urgently ask that this Court consider how TWC can escape litigating a 15% increase in the consumers cable bill by having that increase declared minor and non-fundamental as a matter of law. TWC has a history of bold hypocrisy, saying one thing to one regulatory body and then saying entirely the opposite to another body. This forked-tongue business practice is not new.

5 While a federal antitrust lawsuit was being considered by a three-judge panel in the Ninth Circuit, one of the Defendants in that case, Time Warner Cable, filed formal public comments at the FCC in Washington that wholly contradicted their claims in the case they were arguing against in court. TWC stated that Broadcasters Tying Practices Drive Up Programming Costs and Squeeze Out Independent Programming Options. (Attached as Exhibit 1 are pages of Reply Comments of Time Warner Cable Inc. [a cable distributor] to the FCC dated June 27, 2011, severely criticizing the exact practice challenged by Plaintiffs-Appellants in their antitrust complaint.) We urge this Court to consider the intentional efforts of TWC to avoid any and all public accountability for violating California consumer protection laws. We urge this Court to see through their carefully-crafted corporate smokescreen of telling the Congress that forced bundling is not a matter for legislative review; while telling the FCC that forced bundling is not a matter for regulatory review; while telling the judiciary that forced bundling is not a matter for legal review. We urge this not only because of the reality of the current anticompetitive marketplace for video subscription services, as demonstrated by TWC s forced bundling of Lakers and Dodgers networks at a cost of over $100 per year per subscriber; but also because it appears that TWC intends to expand its cartel-like practices into broadband internet services in order to insulate themselves from any real future competition in that space as well. CONCLUSION In the interest of justice, Amicus PTC and cosigners of this letter urgently and respectfully call on this Court to consider Appellants Petition for Review. Respectfully submitted, PARENTS TELEVISION COUNCIL Attachment By: s/ Timothy F. Winter TIMOTHY F. WINTER President, Parents Television Council and on behalf of: American Family Association, Citizens for Community Values, Concerned Women for America, Consumer Federation of America, Decency Enforcement Center for Television, Illinois Family Institute, Media Research Center, National Center on Sexual Exploitation, Public Knowledge

6 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 707 Wilshire Blvd., Suite 2075, Los Angeles, CA On April 13, 2015, I served true copies of the following document(s) described as AMICUS LETTER IN SUPPORT OF PETITION FOR REVIEW on the interested parties in this action as follows: SEE ATTACHED SERVICE LIST BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with Parents Television Council s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I am a resident or employed in the county where the mailing occurred. The envelope was placed in the mail at Los Angeles, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on April 13, 2015, at Los Angeles, California. Timothy F. Winter

7 SERVICE LIST Maxwell M. Blecher Courtney A. Palko BLECHER COLLINS PEPPERMAN & JOYE, P.C. 515 South Figueroa Street, Suite 1750 Los Angeles, California Daniel G. Swanson Jay P. Srinivasan GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA Bryan A. Merryman Rachel J. Feldman WHITE & CASE LLP 633 W. Fifth Street, Suite 1900 Los Angeles, CA David P. Enzminger WINSTON & STRAWN LLP 333 S. Grand Avenue Los Angeles, CA Dan K. Webb (Pro Hac Vice) Derek J. Sarafa (Pro Hac Vice) William C. O Neil (Pro Hac Vice) WINSTON & STRAWN LLP 35 West Wacker Drive Chicago, IL Hon. Lee Smalley Edmon (Hon. Amy D. Hogue sitting by designation) Superior Court of California, County of Los Angeles 600 S. Commonwealth Avenue Los Angeles, CA Appellate Coordinator OFFICE OF THE ATTORNEY GENERAL Consumer Law Section 300 S. Spring Street Los Angeles, CA OFFICE OF THE LOS ANGELES COUNTY DISTRICT ATTORNEY 210 West Temple Street Los Angeles, CA Attorneys for Appellants Attorneys for Defendant TIME WARNER CABLE INC. Attorneys for Defendant THE LOS ANGELES LAKERS, INC. Attorney for Defendants LOS ANGELES DODGERS HOLDING COMPANY LLC and AMERICAN MEDIA PRODUCTIONS, LLC Attorney for Defendants LOS ANGELES DODGERS HOLDING COMPANY LLC and AMERICAN MEDIA PRODUCTIONS, LLC Trial Judge Attorney General s Office District Attorney s Office

8 California Court of Appeal, Second Appellate District Ronald Reagan State Building 300 S. Spring Street 2nd Floor, North Tower Los Angeles, CA Appellate Court

HAROLD P. STURGEON, Plaintiff and Petitioner, COUNTY OF LOS ANGELES, et al., Defendants and Respondents, and

S190318 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA HAROLD P. STURGEON, Plaintiff and Petitioner, v. COUNTY OF LOS ANGELES, et al., Defendants and Respondents, and SUPERIOR COURT OF CALIFORNIA, COUNTY