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Posted on By Patrick Maines

Obama and the Media, Part II

Apart from the economic effects of President Obama’s fiscal and regulatory policies, there arises the question of how “business friendly” he may prove to be.

The media and communications sector plays a large and important role in the general economy, and the new Administration’s stance on issues that matter to this sector may answer that question.

As mentioned in Part I of this piece, three such issues are consolidation, content controls, and “network neutrality.” The first two were described in the earlier post, today’s looks at the third.

Like beauty, “net neutrality” seems to exist more in the eye of the beholder than in any objective sense. This can be seen in the difficulty that attends even a simple definition of the term, and in the disparate opinions expressed for and against it.

But what can’t be disputed is that passage of any kind of net neutrality legislation would mean that government had acquired a new role in regulating the Net, with consequences certain to be both intended and unintended.

This expansion of the role of government, and concomitant reduction of the private sector, is of course no concern to groups like Free Press who, true to the “class struggle” mindset of their founder and president, worship everything governmental.

But it is a considerable concern to those corporations and investors whose labor and capital are indispensable elements in the further buildout and efficient functioning of the Net.

And this isn’t even to mention the problem, identified by the late Ithiel de Sola Pool, of the risks to free speech when a heretofore unlicensed and unregulated medium (his example was print), evolves into one that is licensed and regulated.

Given the paucity of evidence that broadband service providers have abused their roles in re  censorship or quality of service issues, and that in fact all of them have taken steps publicly and privately to allay such concerns, the wise and business-friendly thing would be for Obama and his people to declare victory in the campaign for net neutrality, disclaim any need for legislation, and move on.
 

Posted on By Patrick Maines

Obama and the Media, Part I

Writing in Broadcasting & Cable as chairman of the American Business Leadership Institute, the gifted Adonis Hoffman*       suggests that business has nothing to fear from an Obama Administration. 

Some early tests of Hoffman’s thesis will come in that corner of the nation’s economy that we care about most — the media and communications sector.  Three distinct issues come immediately to mind: consolidation, content regulation, and net neutrality.

Unless you’ve been in a coma, or trapped inside Free Press (which is pretty much the same thing), you’re aware of the pit into which much of the print and broadcast media are falling.  You also know that the proximate cause of their problems is the Internet, and the damage it has done to publishers’ and broadcasters’ business plans.

For all of this, you’re also aware of one other thing: that however much professional journalists and entertainers may disappoint, they are an essential part of any well-functioning democracy.

So given all of this, why would anyone want to deny broadcasters and publishers such business opportunities as may obtain these days through consolidation?  It’s not, after all, as though we’re talking about marrying companies that are triumphant and unstoppable.  Just the opposite.  In many smaller communities especially, we‘re talking about companies that are on the cusp of oblivion.  And while it’s hard to make the case that inter- or intra-industry consolidation comprises a solution to the crisis facing broadcasters and publishers, neither is it easy to make the argument that it wouldn’t help on the margins.

In a recent interview, Kevin Martin, whose chairmanship of the FCC has been indelibly marked by his passion for content controls, is said to have made “no apologies for his indecency enforcement, saying it was for the sake of children.  He adds that food marketing and media violence are two other places he thinks the government may need to step in….”

And so much for anything and everything to do with personal responsibility, the First Amendment, and the quaint idea that the people who own businesses are in the best position to know how to run them.

Depending on how Obama and his appointees come down on this issue, future programming decisions may well be made not by people whose primary interest is in creativity or profits, but in politics — thereby opening the door to every special interest and single-issue fanatic with designs on TV, and through it, on you.

(Next in "Obama and the Media, Part II": Net neutrality.)
*Adonis Hoffman is a member of The Media Institute’s First Amendment Advisory Council.

Continue reading “Obama and the Media, Part I”

Posted on By Richard T. Kaplar

Digital Technology: Double-Edged Sword

Two items in the Washington Post in the past three days point up how the relentless march of technology will affect news in the months to come – both how it is generated by the White House, and how it is reported by at least one local TV station.

President-Elect Barack Obama sees new technology as a means “to reinvigorate our democracy,” according to senior adviser David Axelrod.  And, as Chris Cillizza reported on Dec. 14, Obama is starting with the Saturday morning radio broadcast begun by Ronald Reagan in 1982.  

“The speech is still beamed out to radio stations nationwide on Saturday mornings, but now it is also recorded for digital video and audio downloads from YouTube, iTunes and the like, so people can access it whenever and wherever they want,” Cillizza reports.

It’s part of a “broader revolution” in how the Obama White House will communicate, according to Doug Sosnik, a senior aide in the Clinton Administration. "The mainframe for this White House will be the Internet, not TV," he told Cillizza.

Only two days earlier (Dec. 12.), Paul Farhi reported that WUSA-TV, Channel 9 in Washington, D.C., had reached a new labor agreement that would scrap the traditional two-person news crew of reporter and photographer.  Under the new pact, an individual “multimedia journalist” will report, shoot, and edit stories alone using digital tools.  Reporters will double as their own camera crew.  Camera operators will take on reporting tasks as well.

In the case of WUSA, however, the impetus is economic. The one-person operatives are part of a broad budget-cutting scheme under which these “multimedia journalists” will actually be paid less than current reporters.

It’s encouraging that Obama embraces digital technology and plans to use it extensively.  At the same time, it’s ironic that digital technology has siphoned viewers from broadcast television and weakened some local news operations to the point where they can only be saved by changes in news-gathering built around … digital technology.

Posted on By Patrick Maines

New Tech and the Old Media

Microsoft’s Chief Counsel for Intellectual Property Strategy, Tom Rubin, recently gave a speech to the UK Association of Online Publishers that has made some waves.

At its most basic, Rubin’s speech was a call for greater copyright protection of “quality content,” and an appeal to content providers for new approaches to the dissemination of their content online.

“The evidence is in,” he says, “and I think we can safely say that the ‘information wants to be free’ approach not only does not work, actually it has been a disaster for almost all newspapers.”

Even if, as a columnist for CNET suggested, Rubin’s speech was meant to position Microsoft, at Google’s expense, as the “safe” technology partner for content companies, many of the specific observations, and the very language employed, provide a welcome contrast to the carelessness and condescension that mark so much of the digerati’s take on the subject.

Speaking of the Evil One, turns out that Google and Yahoo! called off their joint advertising deal just in the nick of time.

A story in the December 2 issue of Am Law Daily quotes Sanford Litvack as saying that the Department of Justice was just three hours away from filing antitrust charges to block the deal when the two companies abandoned their pact.

Litvack says that had the deal not been withdrawn the DOJ would have challenged it under sections of the Sherman Act that “ban agreements that restrain trade unreasonably,” and “make it unlawful for a company to monopolize or attempt to monopolize trade.”

As noted here in September, because of its opacity and potential harm to online publishers and advertisers, the deal alarmed many people, including us. Glad to see it go away, unwept.
 

Posted on By Richard T. Kaplar

FCC on the Offensive

Say what you will about the FCC, but you have to admit they’re a scrappy bunch when it comes to pursuing their crackdown on broadcast “indecency.”  First they persuaded the U.S. Supreme Court to hear the case they lost in the U.S. Court of Appeals for the Second Circuit – the one about Cher and Nicole Ritchie uttering a couple of verboten words during Fox’s “Billboard Music Awards” shows.

Now the FCC crowd is asking the Supreme Court to hear yet another indecency case they lost – this one in the Third Circuit involving the infamous Janet Jackson wardrobe incident during the 2004 Super Bowl halftime show on CBS.

The Supreme Court hasn’t even ruled on the Fox case yet, and in fact heard oral argument only about a month ago (Nov. 4).  But the word on the street is that the justices seemed sympathetic to the FCC’s arguments in Fox – perhaps even sympathetic enough to rule in the agency’s favor.  Handicappers are predicting that a vote favoring the FCC would be slim (say 5 to 4) and decided on narrow procedural grounds, rather than reaching the constitutional issues.  IF the vote goes the FCC’s way at all, that is.  

The common wisdom, of course, is that predicting Supreme Court decisions based on oral argument is a fool’s errand.  So, an unreliable prediction that foresees such a tepid outcome would seem a double whammy, enough to give one pause.

But not the FCC.  They reportedly are buoyed by the oral argument in Fox to the point that they want to pile on with the Janet Jackson matter.  The Commission did, however, request that the High Court defer a decision on whether to hear the Third Circuit case until after the Court rules on the Second Circuit case.   

This begs the question of why the Commission petitioned the Court at this particular time at all.  (The Court is not likely to issue a ruling in Fox until next spring or summer.)  Maybe this is just the Commission’s way of warning broadcasters that the indecency watchdog is not about to roll over and play dead.  To this observer, however, it seems a transparent ploy that might well prove all bark and no bite.    

Posted on By Patrick Maines

The Media and the Economy

Virtually everyone who’s taken an objective look at the subject agrees that media coverage of the presidential race was tilted in favor of president-elect Obama. The latest to make the claim is Time magazine’s Mark Halperin, who last week characterized “extreme pro-Obama coverage” as “the most disgusting failure of people in our business since the Iraq war.”

Late last month, a study by the Pew Research Center found that by a margin of 70%-9% (including over 60% of Democrats and Independents), Americans said journalists wanted to see Obama win on November 4. Even the Washington Post’s ombudsman, Deborah Howell, corroborated the charge. “Readers,” she said, “have been consistently critical of the lack of probing issues coverage and what they saw as a tilt toward Democrat Barack Obama. My surveys, which ended on Election Day, show that they are right on both counts.”

So for 70% of the people of this country, the media’s performance was noted. And for 46%– those who voted for McCain– it was noted and resented, thereby further alienating a large part of the audience of the foundering newspaper and broadcasting industries, a woeful aspect of contemporary journalism that’s been mentioned here before.

But there’s another feature of the media’s campaign coverage that is the subject of this note, also mentioned here before: the failure of political reporters generally to focus their coverage on the issue which mattered most– the extraordinary financial and economic crisis, and what, if anything, the candidates knew, or proposed to do, about it.

An item reported on Bloomberg shapes the problem nicely: “Obama’s program will be far larger than the $175 billion package of tax cuts and stepped-up government spending he proposed just a month ago. Some of his advisers, and Democratic Senator Charles Schumer of New York, have suggested a figure of $700 billion.”

In a country in which trial lawyers routinely work their will on juries comprised of people who have no conception of the difference between, say, a million and a billion, the difference between what Obama was saying then and what his aides are saying now may seem to many like no big deal.

But as people come to understand, however imperfectly, that this is a piper they’ll have to pay, they may look upon the matter differently, especially if the effects of the stimulus and bailout plans don’t come in time or in numbers sufficient to save their jobs, or homes, or life savings.

There is no suggestion here that substantial and intelligent media coverage of the economy would have changed the election results. For that to have been the case, even in theory, would have required an opponent with a far stronger grasp of economic issues than John McCain, about whom it may fairly be said that no presidential candidate in recent history was more inarticulate or unpersuasive.

But by their neglect of the economic issue, political reporters disserved the nation as a whole, and left the people utterly unprepared to vet the candidates’ economic proposals, then or now. That they did this while also clearly favoring Obama just adds journalistic insult to civic injury.
 

Posted on By Richard T. Kaplar

Digital Copyright Questions Deserve Answers

The U.S. Supreme Court has an opportunity to chart a clearer course for copyright protection in the digital age if it agrees to hear a case from the U.S. Court of Appeals for the Second Circuit.  The matter involves a video-on-demand service offered by Cablevision Systems, and allegations by Cable News Network that the service constitutes the unlawful copying and public performance of copyrighted works.

The case raises at least two serious and unresolved issues.  First, who is responsible for making a copy of protected content?   The cable customer who makes a selection from the cable company’s video-on-demand service?  Or the cable company itself, for putting in place and making available the automated software that allows the customer to make that selection?  

Second, what constitutes a public performance?  Is a video-on-demand program viewed in the privacy of one’s family room a public performance?

Such issues are important because they go beyond the narrow scope of video-on-demand and touch on broader questions of how digital technology will be used to produce, store, transmit, and copy content across a variety of platforms – and how that content is to be protected in this digital environment.  Once again technology has far outpaced law and regulation, and is striding ahead in territories still largely uncharted.

How the courts map that territory will depend on how much value they place on protecting the creative rights of copyright holders.  Meanwhile, the digital age in general and the Internet in particular have generated a new class of content users (including many college professors) who believe that anything goes when it comes to obtaining and sharing copyrighted material.  (Remember Napster?)

In the Cablevision matter, however, professors of a different stripe have filed an amicus brief urging the Supreme Court to take the case.  Led by copyright guru Prof. Raymond Nimmer, this group of six law professors and one economics professor (all with impeccable intellectual property credentials) argue that creative rights are worth protecting and that the law should come down on the side of copyright owners.  (Two of the group, Dean Rodney A. Smolla of the Washington & Lee University School of Law and Prof. Stan Liebowitz of the University of Texas at Dallas, sit on the advisory council of the National CyberEducation Project, a program of The Media Institute.)

I agree with these professors, that the Supreme Court needs to take this case for the sake of digital information systems going forward.  I further agree that copyrights are essential – and that copyright protection needs to be clarified in this digital age.   

Posted on By Patrick Maines

Call Me Ishmael

In Herman Melville’s novel, Captain Ahab’s obsession is with Moby Dick.  In the morality play that’s been running for years at the FCC, Chairman Kevin Martin’s obsession is with “a la carte” for cable TV.   Missing from this analogy is a communications lawyer as the novel’s Elijah — "ye shall smell land where there is no land” — perhaps because so few of them are into allegory and none say “ye,” but I digress.

The latest chapter in this struggle between good and evil took place last Thursday when, at the point of a gun, 13 cable companies provided the FCC with information, I blanch to say, about their shifting of channels to digital tiers.  Did I just say digital tiers?  Yes I did, and who wouldn’t want to investigate something like that?

For a matter of such gravity, however, it does seem, as the NCTA argued, a wee bit prejudicial and a skosh abrupt for the FCC to have sent its request from the Enforcement Bureau, and to demand the data in 14 days.  Not eager to be fined, all of the companies did in fact respond by the deadline, but it remains to be seen if the FCC will accept their responses as adequate.

This, because according to press accounts, at least some of the respondents were chary about parting with confidential information relating to their deals with program suppliers, and gobsmacked by the sheer volume of the material requested.  Comcast, for instance, estimated it would take 1,500 man hours just to compile the data for 2008.

Whether the agency accepts the companies’ reports or not, however, it’s clear that this is one fishing expedition that’s not going to end here.  Aided and abetted by such as Commissioner Copps, Kevin Martin is hell-bent, you’ll pardon the expression, on saving consumers from fleeting expletives on broadcasting, and all manner of indecent programming on cable TV, and his solution for the latter is a la carte pricing.

So, as with the captain of the Pequod, the order from the captain of the FCC is sure to remain, for at least a little while longer, “steady as she goes."

Posted on By Patrick Maines

Obama Names FCC Transition Team

President-elect Obama has named the members of his FCC transition team.  They are Professors Kevin Werbach and Susan Crawford.

Here is an election day post from Mr. Werbach’s weblog, and an earlier one in criticism of John McCain’s technology plan.

Susan Crawford’s blog also yields two interesting items — one in re the "white spaces" issue, and the other Google’s deal with book publishers.

First impression: If the new FCC reflects the thinking of the transition team members, it’ll  be happy days for proponents of net neutrality.

 

Posted on By Patrick Maines

Fairness Doctrine Redux?

It comes as no surprise that Senator Charles Schumer (D-N.Y.), perhaps the most partisan politician in America, has indicated his support for a reinstatement of the Fairness Doctrine.  Neither is there any surprise in the reasoning he conjures up for the purpose.

As he told Fox News last week: “The very same people who don’t want the Fairness Doctrine want the FCC [Federal Communications Commission] to limit pornography on the air.  I am for that….  But you can’t say, ‘government hands off in one area’ to a commercial enterprise but you are allowed to intervene in another.  That’s not consistent.”

A piece published here in August (Conservatives and the Media) warned conservatives of the danger in promoting governmental restrictions on indecent speech because it would undermine their efforts in opposition to governmental restrictions like the Fairness Doctrine.

“Through [his] Media Research Center," it said, "[Brent] Bozell is mobilizing his troops to fight against the … [Fairness Doctrine], but because of the pro-regulation stance of his Parents Television Council there are real questions about how much credibility his anti-Fairness Doctrine activities will have.”

Senator Schumer’s comments breathe  a kind of Frankensteinian life into that warning.  Moreover, there is both a logical and precedential plausibility to what he says.  If government can regulate some kinds of speech, why can’t it regulate other kinds of speech?

The simplest and best answer to that question, of course, is that government shouldn’t be regulating any kind of constitutionally protected speech — a point that Senator Schumer is smart enough to understand but not honorable enough to acknowledge.

For all the talk of it, the view from here is that it is unlikely that, in the end, Democrats and “progressives” will push for reinstatement of the Fairness Doctrine per se — just too much trouble to promote the thing openly.  More likely they will try to find another, more opaque way of accomplishing the same result.

As reported in Broadcasting & Cable, Senator Benjamin Cardin (D-Md.) may have inadvertently suggested as much.  “Asked if he would support reimposition of the rule, which was jettisoned as unconstitutional in 1987 and is credited with the rise of conservative talk radio, Cardin did not rule out some review of media coverage.  ‘I don’t think we’re going to get to it in the manner in which you are explaining it,’ he said.  ‘I think we do look at making sure that our system is not biased….’”