Free Speech Week: Celebrating, Reflecting

Free Speech Week has always been a time to celebrate freedom of expression. This year, however, perhaps there should be an element of somber reflection amid the festivities. It’s worth remembering, after all, that the exercise of free speech can have life-or-death consequences in certain parts of the world. How thankful we should be that freedom of speech and freedom of the press can be exercised in this country without fear of such extreme retaliation.

The sad case of Jamal Khashoggi brings this into sharp relief. The disappearance and murder of the Washington Post contributing columnist, which the Saudis now admit occurred at the hands of their own operatives, happened just three weeks before Free Speech Week, October 22 – 28. He joins a long list of journalists from around the world who have disappeared or been killed while working in pursuit of the truth, who spoke out too stridently or too frequently against corrupt government leaders and their abuses of power.

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TV Owners Need New Rules To Keep Pace

We are living in the platinum age of television. Consumers are enjoying an abundance of movies, news, sports, and entertainment, available anytime and anyplace, in-home or out.  Every communications medium from wireless phones to the worldwide web is in the business of broadcasting content over its platform. Although we now call it “video,” at the core, it is television nonetheless, and the world cannot get enough of it. For legacy broadcasters, this is both a blessing and a bane.

Before the end of the year, the Federal Communications Commission (FCC) will finalize its mandatory review of the national ownership rules – set of regulations governing television and radio station ownership in the U.S. The FCC is expected to expand, and perhaps eliminate, the national ownership cap. If it does, broadcasters will be dealt an unprecedented, but fortuitous, break that will change the media landscape for the foreseeable future. It would be a follow-on to the FCC’s 2017 decision to reinstate the UHF discount, an arrangement that allows broadcasters to count UHF stations as only 50 percent toward the national ownership cap.

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Speaking Up for a Free Press

Something quite remarkable – unprecedented, actually – is scheduled to take place on Aug. 16. More than 100 newspapers across the country will mount a coordinated editorial response to President Trump’s increasingly frequent attacks on the media. Responding to a rallying cry from the Boston Globe, papers ranging from large metropolitan dailies to small weeklies will publish editorials defending freedom of the press and their critical role in this democracy. They will be joined by members of the broadcast media as well, with the strong support of the Radio-Television Digital News Association.

These editorial writers will be reacting to the constant stream of messages from the president, in tweets and speeches, that the mainstream media are “the enemy of the people,” “fake, fake disgusting news,” “fake news media,” and so forth.

One school of thought has held that replying to such charges is pointless because the president’s pronouncements are either hollow rhetoric or impulsive ramblings or political fodder for his base – or some combination of the three. Furthermore, since the First Amendment guarantees freedom of the press, and the courts are willing to uphold that freedom, the president’s words can have no real effect on the media. Thus, this line of thinking concludes, the act of replying to hollow assertions becomes a hollow act itself.

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The Continuing Leadership of the U.S. in Global Net Vitality

Regardless of your political leanings, the just-released report by the Telecommunications Research and Policy Institute shows that with regard to the global broadband Internet ecosystem, there is no need to Make America Great Again.  That’s because the U.S. leadership role in this field remains well established, as documented in the study that I authored – “Net Vitality 2.0: Identifying the Top–Tier Global Broadband Leaders – The Net Vitality Index In Detail” (available at trpiresearch.org).

This is the only evidence-based analysis that compares countries on an apples-to-apples basis, based on four essential elements that work together seamlessly to create the Internet’s vitality that we rely on in virtually every aspect of our daily lives.  These are (1) applications and content; (2) devices; (3) networks; and (4) innovation and competitiveness indicators.  Omit one of these elements from the internet equation and the value of the Net to all of us would be greatly diminished.

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Time To Review Kid Vid Regulations

Under Chairman Ajit Pai, the Federal Communications Commission has made some remarkable strides in reviewing and moving to repeal a host of burdensome regulations that have outlived their usefulness. Media ownership rules like the newspaper/broadcast cross ownership ban come to mind, as do the Commission’s highly inflammatory efforts to roll back the enforcement of net neutrality under Title II.

The Commission continues to forge ahead. The next salvo may well be the initiative announced by Chairman Pai to review the rules governing educational and informational programming for children aired by broadcasters, known as the “Kid Vid” rules. Commissioner Michael O’Rielly has agreed to oversee the review of these regulations.

The story of the Kid Vid rules is a familiar one, at least in its broad strokes. Congress enacts legislation to address a perceived problem, in this case deficiencies in broadcast programming aimed at children (Children’s Television Act of 1990). The FCC carries out its obligation to issue regulations implementing the legislation (Policies and Rules Concerning Children’s Television Programming, 1991).

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The Judge Who Holds Key to Future of Media

Federal Judge Richard Leon is not a household name, but he is one of the most powerful men in Washington. As senior judge of the U.S. District Court for the District of Columbia, Leon’s past decisions have altered the fate of some of America’s biggest companies, and his upcoming decision holds the key to the future of the media industry itself.

Leon made history in 2011 by approving the $38 billion Comcast-NBCU merger, positioning the new company as the largest cable and broadcast entity in the U.S. More importantly, his ruling established a hard-to-overlook legal precedent, which has influenced antitrust law and competition policy ever since.

Today, Judge Leon presides over yet another ground-breaking case with similar themes: United States v. AT&T and Time Warner. A mega merger valued at $108.7 billion, the deal seeks to marry a major content distributor (AT&T) with a leading video content producer (Time Warner). Beyond the litigants, the media and communications sector anxiously await the judge’s ruling, and with good reason.

First, the case marks the first time since the Carter administration (1977) that the U.S. Department of Justice has sued to block a vertical merger (i.e., between two companies that do not compete)…..

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Net Neutrality: How Did We Get Here and Where Are We Going?

It’s hard to imagine an issue in today’s media/telecom policy universe that has sparked more controversy or inspired more passion than the innocuous-sounding Net Neutrality. How could such a seemingly simple concept – that Internet access should be open to everyone and that services should be provided on a neutral basis without discrimination by type, price, speed, or quality – create such a firestorm?

One need look no further than the cover of this edition of Inside the FCC for the answer, or at least a major clue: “The Pros and Cons of Internet Regulation.” Many advocates of Net Neutrality believe this goal can’t be achieved without the regulatory hand of government exerting its grip on the Internet – and the more forcefully, the better. In contrast, other advocates of Net Neutrality believe it is a goal best achieved through the workings of the marketplace, and point to the successful operation of the Internet for years prior to any regulation.

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Advertising Deductibility: For the Sake of Speech

 The “Tax Cuts and Jobs Act,” introduced amid great fanfare on Nov. 2, has now been passed by the U.S. House of Representatives along an essentially party-line vote. The Senate’s version, introduced Nov. 9, is still undergoing intense scrutiny as groups from every quarter weigh the bill’s proposed cuts in tax rates versus the elimination of certain deductions, credits, and other tax breaks.

As ideas for reforming the tax code were tossed around in recent months and even years, one proposal – or some variation of it – would surface from time to time. This was the idea that the tax deduction for business advertising expenses should be eliminated.

This has always been an ill-considered idea (as we shall discuss below), and thus we were relieved that it did not find its way into the new tax bills of either the House or Senate. But since these bills are only the opening salvos in the difficult battle to revise the tax code, it would be worthwhile to examine why this ad-related provision should not be a part of the measure that finally reaches the president’s desk.

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Repealing Media Ownership Regulations: It’s About Time

FCC Chairman Ajit Pai has proposed the most reasonable of actions: repealing or revising 40-year-old media ownership rules that long ago outlived any marginal usefulness they might’ve once had.

This should be a no-brainer. But, Washington being what it is, entrenched interests and politicians bent on maintaining the status quo for their own purposes have pilloried Pai for trying to do something that should’ve been done decades ago.

First, the facts. On Oct. 26, Chairman Pai released an Order on Reconsideration and Notice of Proposed Rulemaking. This proceeding seeks to accomplish the following:

  • Eliminate the Newspaper/Broadcast Cross-Ownership Rule;
  • Eliminate the Radio/Television Cross-Ownership Rule; and
  • Revise the Local Television Rule to eliminate the Eight-Voices Test and to incorporate a case-by-case review provision in the Top Four Prohibition.

The proceeding would also seek to eliminate the attribution rule for television Joint Sales Agreements; retain the disclosure requirement for commercial television Shared Services Agreements; keep the Local Radio Ownership Rule; and create an incubator program to encourage new and diverse voices in the broadcast industry.

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Reflections on the Microsoft/Ireland Case

Last week the Supreme Court granted a review of a Second Circuit decision upholding Microsoft’s defiance of a U.S. warrant for the production of e-mail messages, stored in a server housed in Ireland, of a man suspected of drug trafficking.

At its simplest, the legal battle between Microsoft and law enforcement is a debate over the reach and intent of a law passed many years (1986) before the coming of age of the Internet.

Microsoft and its allies argue that that law, the Stored Communications Act (SCA), was written at a time when Congress knew virtually nothing about the Internet and what it would become, and that furthermore there is no indication in the language of the law or congressional intent that suggests it could be applied extraterritorially. Continue reading “Reflections on the Microsoft/Ireland Case”