Progressives’ Anti-Merger Mania

The proposed merger between the cable systems of Charter Communications, Time Warner Cable, and Bright House Networks has brought out the usual poseurs in opposition.  I speak, of course, of such as Common Cause, Consumers Union, and Public Knowledge (all of which are wrong in their usual and tiresome way, but not certifiable), and their more extreme kin, Media Alliance and Free Press.

As it happens, there exists a bridge between these armies of progressivism in the person of former FCC commissioner Michael Copps.  Since leaving the FCC, Copps has flocked to the aid of those organizations he favored when he was a commissioner.  So it is that the gentleman is now on the board of Free Press and a “special adviser” to Common Cause.

Which, of course, is why it’s important to know the kinds of things he’s saying about the merger.  Writing in Common Dreams (“Breaking News and Views for the Progressive Community”), Copps relieves himself of opinions like these:

This merger would create a new Comcast – a national cable giant with the ability and the incentive to thwart competition, diversity, and consumer choice….  >> Read More

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.  The full version of this article appeared in The Hill on Feb. 9, 2016.

What Changed the FCC Chairman’s Mind?

On the occasion last week of the Federal Communications Commission (FCC)’s passage of “net neutrality” regulations, Tom Wheeler, chairman of the Commission, announced that it was “the proudest day of my public policy life.”  It’s not known whether that statement is a reflection of how little Wheeler feels he’s accomplished in life, or an embarrassing attempt to take credit for something that was forced on him.

What we do know is that the regulation that passed with his vote – and those of the other two Democrats on the Commission – was not the much sounder one Wheeler initially proposed, but a radical version that carries within it opportunities for mischief and much worse than that.

So what happened to change Wheeler’s mind?  The most obvious explanation is the interjection of President Obama who, a few weeks before the vote, publicly stated his view that the FCC should subject Internet service providers (ISPs) to utility-like regulation.  This is the explanation for Wheeler’s switch held by most insiders, and there’s no doubt that these FCC commissioners, their notional “independence” notwithstanding, move like earlier ones to the music of their parties and the presidents who appoint them. >> Read More

If It Walks Like a Duck….

The storms occasioned by the comments of "Duck Dynasty" star Phil Robertson, and A&E’s suspension of him, mirror similar unhappy episodes in the media and on college campuses.  As noted here, and here, and here, and here, examples of similar instances of free speech intolerance are plentiful.

Indeed, colleges and the media, the two institutions that one would expect to be the most supportive of free speech and diverse opinion, are in fact among the least.

Because A&E’s decision was its alone, and not an act of government, this affair is not a First Amendment issue per se. Since the network owns the rights to the program it can do whatever it wants with it. But when such matters arise within companies that are part of the only industry protected by name in the Constitution, one would hope that there would be at least a rudimentary respect for the broader concept of freedom of speech.

This said, it’s understood that in an age in which speech police abound, anything done or said by an institution or individual may become the target of organized protests, and for the media this can mean campaigns directed at their advertisers. This, presumably, was a factor in A&E’s decision to suspend Robertson.

Even so, it’s hard to sympathize with the network.  For one thing, A&E’s apparent decision to air next season those episodes of the show already filmed before they banned Mr. Robertson smacks of transparent hypocrisy.

And then there’s this: Cable TV is filled with reality shows that feature everything from hog hunters and alligator slayers, to catfish noodlers and wilderness dwellers.  Were a magazine reporter to interview any of the stars of these shows on any subject touching on the socio-political, what percent of them  would say something as would give offense to someone?  Maybe all of them?

Of course that doesn’t bother networks like A&E, so long as these people don’t in fact speak about such things. Seen from this perspective, the casts of such shows are like performing monkeys, there to engage in their usual antics while the networks play the accordion.

Not for the first time, one of the most poignant comments to issue about this affair comes from Camille Paglia. As reported in the Daily Caller, Paglia sees in this kerfuffle another indication that “the culture has become too politically correct”:

To express yourself in a magazine in an interview – this is the level of punitive PC, utterly fascist, utterly Stalinist, OK, that my liberal colleagues in the Democratic Party and on college campuses have supported and promoted over the last several decades. This is the whole legacy of free speech 1960s that have been lost by my own party.

One need not agree with Paglia about PC’s roots in order to agree with her about its corrosive effect on the culture.  With respect to matters of free speech, political correctness comes with a smile on its face but jackboots on its feet.

                                               

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

‘Breaking Bad’ Elevated Television

If you’ve been out of the country for the past six years, you have an excuse for being unfamiliar with Breaking Bad, perhaps the best show that’s ever been on television.

The story of Walter White, a humble high school chemistry teacher who, upon learning he has lung cancer, decides to team up with a former student to make methamphetamines, BB portrays the transformation of White from “Mr. Chips into Scarface,” as the show’s creator, Vince Gilligan, describes it.

Fresh off its Emmy award as best drama series, a recognition that was too long in coming, the question now is when will we see another TV series that is as astonishingly good?  And another question: Why is it so hard for truly excellent programming to get air time?

In his book Difficult Men, Brett Martin recounts the lengthy and harrowing path traversed by Gilligan on the way to securing a deal with AMC, one of the several channels that comprise AMC Networks.

Martin tells the tale of Gilligan’s meeting with executives of the TNT cable network, who liked the show but were afraid of the drug-making aspect of it: “We don’t want to be stereotypical philistine executives, but does it have to be meth?  We love this, but if we buy it, we’ll be fired.”

Nor was TNT the only cable network that turned thumbs down on Breaking Bad.  So too did Showtime, HBO, and FX, meaning, as Gilligan put it, “there was no place left in the known universe.”

Elsewhere in his book, Martin usefully recounts the words of the AMC executive (Rob Sorcher) who decided to take a chance on the show: “We had had success with Mad Men,” he said.  “And once you’ve had that cookie it tastes good.  You want another one.  The decision to go another way, believe me, it was … terrifying.  But once you did, once you chose quality over everything else … you could do anything.”

At a time when so much video programming – film as well as TV – is demographically driven, PC themed, and/or scripted for cardboard characters, Breaking Bad is something very different.

Incorporating tremendous writing, directing, acting, and visuals, BB delivered a series that was marked by ambiguity, complexity, surprise, and sophistication.

As many have noted, in recent years the Emmy’s have been dominated by cable rather than broadcast network programming.  Indeed, both pay and basic cable channels have gained a reputation as the place to find smarter, edgier original series like Mad Men, The Sopranos, and of course Breaking Bad (despite the initial drug-themed hesitation about BB).  And this raises the question of why much of the best programming has been gravitating to cable.  

One explanation is that broadcasting is much more heavily regulated.  For this reason, programming that is marked by sexual or violent content carries greater risk for broadcasters than for cable networks.  And the risks involved don’t issue from government only.

A case in point is the Showtime program Dexter, a series that, though critically acclaimed, features both sexual situations and violence.  In 2007, CBS announced that it was considering broadcasting reruns of Dexter over the air.  In response, a conservative group, the Parents Television Council, warned CBS affiliates to preempt the show, and threatened the show’s advertisers.

As it happened, CBS edited the reruns down to a TV-14 rating and aired them on its affiliates, but only for a single season.

None of this is to suggest that violence equals excellence, or that excellence can only be achieved with the inclusion of violence – only that where violence is a necessary ingredient in the excellent telling of a good story, its inclusion ought not to preempt the airing of it.

For years now, many people have bemoaned the “dumbing down” of America, a phenomenon defined by Wikipedia as “the deliberate diminishment of the intellectual level of the content of schooling and education, of literature and cinema, and of news and culture.”

The popular and critical success of Breaking Bad demonstrates that there is both the talent and the audience for something better.

                                               

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.  A version of this article appeared in the online edition of USA Today on Sept. 29, 2013.

After Aurora, Questioning Violent Programming (Again)

Very few columnists write as well, or as powerfully, as Peggy Noonan, and her piece last week in the Wall Street Journal titled “The Dark Night Rises” is no exception.  As with so many of Noonan’s commentaries, the strength in her column is not just in her way with words but in the fact that her opinions are well grounded in widely shared values.

So it is that when she alleges and bemoans the coarsening of popular culture, and the difficulty parents have these days in controlling the kind of things that their children get from the media, one guesses that few would disagree.

Even the ad hominem criticism in her piece – that Hollywood executives take care to insulate their own children from what they produce, and that they have “cabanas at the pool” at the Beverly Hills Hotel – doesn’t seem exorbitantly over the top given the thrust of her argument as a whole.

But when she suggests, by quoting from a writer at RealClearPolitics, that a “hundred studies have demonstrated conclusively that viewing violence on the screen increases aggression in those who watch it, children especially,” she is on shakier ground than she realizes.

In 2002, Jonathan Freedman, a professor of psychology at the University of Toronto, published a lengthy and devastating critique of this thesis titled “Media Violence and Its Effect on Aggression: Assessing the Scientific Evidence.”  Some years later, Dr. Freedman wrote a paper on the same subject for The Media Institute.  That paper concluded with these words:

In sum there is no convincing scientific evidence that television violence causes children to be aggressive, or that any particular depiction of violence on television has this effect, or that it affects any particular type of children more than others … my conclusion is that either there is no effect of television violence on aggression, or, if there is an effect, it is vanishingly small.

Beyond the scientific literature, whatever its value, lie other aspects of the larger issue.  There is, for instance, the small matter of whether we, as a nation, should desire for everyone only that kind of programming that is fit for children.

And then there’s the issue of violence as a literary device.  Noonan is right to ridicule some past attempts by Hollywood executives to “rationalize and defend” what they produce.  But the problem with any wholesale denunciation of program violence is that it doesn’t allow much respect for programming that, though featuring violent portrayals, is terrific all the same.

A great case in point is the production, being shown on the AMC cable network, called “Breaking Bad.”  It is the story of one Walter White, a high school chemistry teacher who, having contracted terminal cancer, takes to making methamphetamine.  “Breaking Bad” has, in its fifth season, become increasingly violent as Walter, in addition to his meth cooking, has become a murderer in the company of murderers.  So violent?  Yes.  But this is also one of the most brilliant series, of any genre, ever shown on TV.

It may be cold comfort to parents overwhelmed by the programs and platforms accessible by their children, but the only practical solution to the problem is parental oversight and responsibility for what their children watch.  Everything else – from exhortations to put the cultural genie back in the bottle, to governmental policies that attempt to circumvent First Amendment case law – is doomed to frustrate and to fail.

But that’s the thing about free speech. It’s not a prophylactic to be deployed against pictures, words, or ideas, it’s a necessary precursor to every other freedom.

                                               

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

D.C. Circuit’s ‘Net Neutrality’ Decision

The D.C. Circuit Court’s decision, while obviously correct, will not slake the thirst of anyone looking for intellectual arguments for or against the FCC’s proposed regulation of the ISPs’ network-management practices. Because the court ruled that the FCC lacked the "ancillary" authority it asserted, the body of the decision amounts to little more than a refutation of the respondents’ argument that earlier Supreme Court decisions provided precedent for the FCC’s claims.

The "legalistic" nature of this decision aside, there is something important here. It is widely surmised (and feared) that, thus rebuffed, the FCC will attempt to get to its desired result – network neutrality, as it’s called – by attempting to regulate ISPs, like phone companies, under Title II of the Communications Act.

But look what’s happening here. On the basis of claims of abuse so slim they’re very nearly invisible, the FCC has proposed to expand and codify that agency’s "Internet principles" in a way that guarantees its regulatory oversight of the freest, most democratic, and fastest-growing communications medium in the country. And for what? Because of fears that Internet providers might look for ways to insulate everybody else from the negative consequences of the actions of a relative handful of bandwidth hogs?

One of the intervenors in this case – Free Press, whose sole reason for being is the subjugation of the commercial media and communications companies to the yoke of government – coined the phrase "Net Neutrality: The First Amendment of the Internet." The reality, as someone put it, is that codified net neutrality is more nearly "The Fairness Doctrine of the Internet."

For now, nobody knows for sure what will happen next – whether the FCC, or Congress, will push ahead in the conviction that this too is an issue of such "transformative" importance the only thing that matters is getting it done. But in this, as in so many things, the wiser course would be to rethink the matter entirely. It rarely happens that government acts more efficiently than the marketplace, and net neutrality is almost certainly no exception to that rule.

A Unitary First Amendment – Redux

By guest blogger LAURENCE H. WINER, Professor of Law and Faculty Fellow, Center for Law, Science & Technology, Sandra Day O’Connor College of Law, Arizona State University, Tempe, Ariz.

“[W]e don’t put our First Amendment rights in the hands of [government] bureaucrats.”  What an extraordinary statement for the Chief Justice of the United States to make when one considers the Supreme Court’s long history of allowing Federal Communications Commission (FCC) content-based regulation of broadcasting and other electronic media!

Chief Justice Roberts made this statement in last week’s oral argument of Citizens United v. Federal Election Commission.  Citizens United, involving “Hillary: The Movie,” is the little case that could – could just restore a strong measure of freedom of speech in the most critical of all contexts, namely political speech.

As described in an earlier post occasioned by the first round of oral argument in this case last spring, the narrow issue is the provision of the McCain-Feingold “Bipartisan Campaign Reform Act of 2002” (BCRA) that bans the use of corporate funds for “electioneering communications” via broadcast, cable, or satellite close to an election.  In the earlier argument some members of the Court were astounded by the government’s contention that Congress also would have the constitutional power to similarly ban printed material, including books.
    
This apparently led those members of the Court who long have been troubled by limitations on political speech imposed in the guise of campaign finance reform to set re-briefing and rearguing for an unusual and extended one-day September session.  And, the Court broadened the issue for rehearing by asking the parties to discuss whether the Court should overrule not only that part of its 2003 opinion in McConnell v. F.E.C. upholding the specific BCRA provision, but also the Court’s 1990 opinion in Austin v. Michigan Chamber of Commerce.  In Austin, over strong dissents, the Court upheld a state’s restrictions on independent expenditures from general corporate funds for ads supporting or opposing a candidate for state elective office.

Not surprisingly, the Court’s actions with respect to Citizens United prompted more than 40 amicus briefs with what the New York Times called “an array of strange bedfellows and uneasy alliances” and set the stage for high drama.  How far will the Court go in affirming the political free speech rights of corporations?  

Arguing briefly for Senator Mitch McConnell as amicus, Floyd Abrams reminded the Court that in New York Times v. Sullivan the Court eschewed available narrow grounds to resolve the case and instead issued a broad ruling to fully vindicate the vital First Amendment interests at stake.  And he told Justice Sotomayor that, similarly here, this is the way the Court would do more good than harm.

Solicitor General Elena Kagan, making her debut appearance on behalf of the FEC, tried to reassure the Court that the government’s position on printed campaign speech had changed.  Don’t worry, she suggested, the FEC has never tried to ban a book, though when pressed she immediately stated a pamphlet might be different.  And this is when Chief Justice Roberts made his comment about not relying on FEC bureaucrats to protect the First Amendment.

But the Court has left countless First Amendment matters in the hands of the government bureaucrats at the FCC at least since Justice Frankfurter’s 1943 opinion in the seminal NBC v. U.S. case in which, in a single paragraph, he subordinated the First Amendment to the public interest standard of the Communications Act.  This later caused Professor Harry Kalven to comment that: “The passage catches a great judge at an unimpressive moment.”  

Over the years, the Court’s deference to the FCC has allowed all manner of infringements on free speech in the name of the amorphous public interest, from the now-defunct (but perhaps soon to be resurrected in some version) fairness doctrine, to the recent debacle over broadcast “indecency,” and maybe to a threatened similar campaign against violence in the media.

But members of the FCC, no less than of the FEC, have no expertise or competence in First Amendment matters.  This is not a comment on any present or former members as individuals; rather it is the basic recognition that the First Amendment disables any government bureaucrat from claiming or exercising any province over matters of free speech or free press.  “Congress shall make no law” is a straightforward “hands-off” policy for government bureaucrats.

During last week’s argument of Citizens United, Justice Breyer suggested to Ted Olson (representing Citizens United) that Congress had a compelling interest for the restrictions it enacted and thought it had narrowly tailored them.  So, the justice asked, should the Court really second-guess Congress?  Mr. Olson forthrightly replied, “You must always second-guess Congress when the First Amendment is in play.”  Exactly so, regardless of the medium of communication at issue, and a fortiori must courts stringently second-guess the FCC when it is infringing free speech, directly or indirectly, as it is wont to do all too frequently.

Whatever the ruling in Citizens United, we can only hope the chief justice’s words reverberate loudly the next time the FCC seeks to sustain an infringement on free speech or press in the name of the public interest.

The Big, Uneventful Day

A blog about media and communications policy would be remiss if it did not mark the fact that this is a watershed date in television history – even if nothing much seems out of the ordinary.

This, after all, is June 12, the date years in the making on which television broadcasters are converting their analog signals to digital.  For TV viewers with cable or satellite (i.e., most of us) there is no difference.  For those who still rely on antenna reception of over-the-air broadcast signals, there will be no more TV until they get a converter box (for which the federal government has been offering discount coupons for months).

The good news is that most people have already taken steps to become digital-ready.  Paul Karpowicz, chairman of the National Association of Broadcasters TV Board, said at a press conference yesterday that only 1.75 million over-the-air households have not prepared for the changeover.  

The National Telecommunications & Information Administration (NTIA) said it received almost 320,000 requests for converter-box coupons yesterday alone, up from the recent daily average of 114,272.  And for those who somehow haven’t gotten the word about the switch to digital, the FCC has 4,000 operators standing by 24/7.

FCC and industry leaders acknowledge that some stations might experience a few engineering bumps.  But for broadcasters and viewers alike, the changeover is said to be going relatively (and even surprisingly) well.  

The FCC, NTIA, NAB, NCTA, and countless station engineers deserve a “well done” for making this watershed day so uneventful.  

Time Warner Cable and Consumption-Based Billing


Time Warner Cable has had quite a bumpy ride for the past couple weeks.  Having announced earlier a plan to conduct trials of a consumption-based billing policy, in which users would be charged based on the amount of data they download and upload, by week’s end the company was obliged to suspend the trials altogether.

What happened in between were the protests of some customers and bloggers, the usual mischief of some of the “public interest” lobbies (they’re from Washington and they know what you want), and most importantly, the intervention, as critics, of a congressman (Massa) and a U.S. senator (Schumer).

Aside from the fact that broadband users who consume unusually large amounts of bandwidth, downloading movies and the like, would have to pay more, it’s not immediately clear what’s wrong with consumption-based billing.  That is, after all, the way we pay for most things, and it protects those who use less from having to subsidize the payments of those who use much more.

No matter.  In an age when information “wants to be free,” and everyone is entitled to everything, arguments based on marketplace economics are probably not going to persuade a lot of people, and certainly not grandstanding members of Congress.

Which is why, at the end of last week, Glenn Britt, Time Warner Cable’s CEO, announced a suspension of the trials scheduled for later this year in Rochester, N.Y., Austin and San Antonio, Texas, and Greensboro, N.C.

In a display of their usual savoir-faire, several of the “public interest” moguls were full of gloating, like that of Timothy Karr of Free Press: “We’re glad to see Time Warner Cable’s price-gouging scheme collapse in the face of consumer opposition.  Let this be a lesson to other Internet service providers looking to head down a similar path.”

Only slightly less tiresome was the statement of Gigi Sohn of Public Knowledge: “The company properly listened to its subscribers, the public and policymakers, all of whom (emphasis added) were highly critical of the proposition in the first place.”

The celebrations, however, may be a bit premature.  What Time Warner Cable said was that it was suspending the trials, not abandoning consumption-based billing, and that in the meantime it was going to deploy measurement tools, a kind of “gas gauge,” that would allow users to see how much bandwidth they were using each month.

Assume that some months from now it transpires that the vast majority of users consume bandwidth in amounts that would qualify them for the lowest and cheapest tiers, while only a small minority would have to pay at the highest rates.  Now that would be awkward, wouldn’t it?

A Unitary First Amendment

By guest blogger LAURENCE H. WINER, Professor of Law and Faculty Fellow, Center for Law, Science & Technology, Sandra Day O’Connor College of Law, Arizona State University, Tempe, Ariz.
 
In last week’s Supreme Court oral argument of the “Hillary: the Movie” case, Citizens United v. F.E.C., the government attorney apparently perplexed several of the Justices by the breadth of his argument.  His argument, and the responses of some Justices, highlight a crucial aspect of the First Amendment.

Citizens United is a nonprofit corporation that made a 90-minute film sharply critical of Hillary Clinton.  During her presidential campaign it wanted to pay cable companies to make the film available to subscribers free via video on demand.

The McCain-Feingold “Bipartisan Campaign Reform Act of 2002” (BCRA), however, bans “electioneering communications.”  This ban prohibits a corporation or labor union from using its general treasury funds for any broadcast, cable, or satellite communication that constitutes express advocacy or its functional equivalent regarding a clearly identified federal candidate within a set time prior to an election.  Electioneering communications, however, do not include news or commentary by a media company, and the statutory ban does not apply to the print media or the Internet.

We are used to media exceptionalism, at least with regard to broadcasting.  That is, throughout its history broadcasting has struggled under a strange First Amendment jurisprudence affording it limited freedom of expression and subjecting it to a panoply of “public interest” obligations that would be constitutional anathemas for any other medium of mass communication.  

Political access rules and requirements for children’s educational programming, for example, fall in this public interest category for broadcasting.  BCRA strangely perpetuates this dichotomous approach by, on the one hand, in effect covering only “television” (broadcast, cable, and satellite), and at the same time exempting from its reach news and commentary in all media.

When pressed by the Justices, the government attorney took the position that the Constitution would allow Congress, if it wished, to extend the statutory ban to print media, a book for example.  To this, Justice Alito replied, “That’s pretty incredible,” going on to characterize the government’s position as allowing it to ban a book about politics, under an expanded BCRA statute, if published by a corporation close to an election.  

Justice Kennedy then demonstrated how bizarre the government’s position is by noting that a book, downloaded by satellite onto a Kindle reader, presumably both would come under the reach of the present statute and, in the government’s view, constitutionally be subject to censorship.  Before long Justice Scalia confessed to being “a little disoriented” because he thought the Court was dealing with the constitutional provision, known as the First Amendment, that he remembers as beginning with “Congress shall make no law.”

BCRA’s restriction on political speech in the guise of campaign finance reform is troubling in its own right.  What great evil of political propaganda justifies this sort of censorship?  But it is good to see members of the Court now “disoriented” by the hopelessly disjointed, media-based approach to First Amendment freedom of expression that the Court itself spawned in the middle of the 20th century and unfortunately maintains in our radically transformed digital era.  

These Justices were incredulous that the government would suggest it could extend a regulation of electronic media to print.  But the disconnect finally should go just as strongly in the other direction – what is prohibited in regulating print media is also prohibited for all media, including broadcasting.

In recent years, the Federal Communications Commission under former chairman Martin pursued a relentless and unwarranted campaign against so-called “indecency” on broadcast television.  The Supreme Court has pending before it a challenge to the Commission’s authority in this area to regulate what no government entity can restrict in any other media.  It would be gratifying if in its decision in the next few weeks the Court finally adopts and applies a unitary First Amendment.

Professor Winer is also the Faculty Editor of Jurimetrics.