Tag: Broadcasting

Posted on By Patrick Maines

Aereo and the Future of Content and Copyright

A case being petitioned for review by the Supreme Court will, if accepted, tell us a lot about the future of broadcasting. More importantly, it will tell us a lot about the future of all the content media, and of the nation’s copyright laws generally.

The case in question concerns the business practices of an outfit called Aereo, which streams for a fee over-the-air TV programming to the company’s subscribers.  Because this programming is delivered through the Internet, it is accessible when and where the subscriber wants it.  Sounds good, right?

Bu there’s a hitch.  Unlike cable and satellite systems, which pay the broadcasters for the right to retransmit their copyrighted programming, Aereo pays nothing. And how are they able to do this?  Well, that’s the heart of the Supreme Court petition filed last month by the four big broadcast networks, ABC, CBS, NBC, and Fox.

When cable and satellite operators distribute broadcast programming to their subscribers this is deemed a “public performance,” which is why those operators have to pay the broadcast copyright holders for the privilege.  When, however, an individual records a copyrighted program on his DVD this is deemed a “private performance,” and requires no compensation to the copyright holder.

Aereo’s business plan plainly exploits this public/private dichotomy by the simple device of installing tens of thousands of dime-sized antennas, each of which stream the over-the-air programming to Aereo’s subscribers individually, thereby qualifying, according to Aereo, as a private performance.

Lest you think for a minute that this is a triumph of engineering, rest assured it is not.  As noted by Rod Smolla, the lawyer who filed a brief for The Media Institute in support of the petition for review: “If a picture tells a thousand words, a thousand antennas tell the picture.”

Nor is Smolla the only person who sees through this scheme.  Denny Chin, an appeals court judge who was part of a panel that earlier ruled against an injunction against Aereo, wrote this in his stinging dissent:

The [Aereo] system employs thousands of individual dime-sized antennas rather than one central antenna; indeed, the system is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law. 

Because the Supreme Court agrees to review less than one percent of the cases brought before it, it’s no sure thing that Aereo will be reviewed, even though Aereo has declined to oppose the petition for review.  Much may depend on the decision in another appeals court, which is considering a case concerning a company with an Aereo-like setup.  If that court rules against the company, there will be a conflict between two appeals courts (the Second and Ninth circuits), something that would increase the chances that the Supreme Court would agree to review the case.

The importance of this case is not just whether broadcasters can derive revenue for their programs from third-party Internet distributors.  The importance is in what it will tell us about the future of all the content industries and of copyright itself.

To put it another way, you don’t have to be a fan of broadcasting (or Hollywood, or the recording industry, etc.) to have a high regard for copyright.  Like the First Amendment, copyright is enshrined in the U.S. Constitution, and in practice it is copyright that provides the incentive that leads to the creation of the content that the First Amendment protects!

Seen this way (and even acknowledging that there is always some tension between the First Amendment and copyright, usually over arguments about the reach of “fair use”), both of these concepts are not just important in their own right, they’re the opposite sides of the same coin.

Today, however, those industries that rely on copyright protection – the so-called content media like newspapers, magazines, motion pictures, recording companies, book publishers, and broadcasting – are being decimated by piracy and/or the copyright-skirting practices of Internet companies like Google.

Whether the Supreme Court reviews the case or not, Aereo won’t be the last word on the subject of copyright protection.  But if Aereo, or any company, can escape paying copyright fees simply by creating a service that turns on a technological sham like Aereo’s, it’s not just content producers that will suffer; it’s the content-consuming public and copyright law generally.

                                               

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 Dec.16, 2013.

 

Posted on By Patrick Maines

The Revolting Truth

Among the unhappier facts of life in America these days is that more than a few people support the suppression of speech.

The latest evidence of this is the formation earlier this month of a group called Truth Revolt.  Created by David Horowitz, a conservative activist (and erstwhile leftist), TR says its mission is to:

Unmask leftists in the media for who they are, destroy their credibility with the American public, and devastate their funding bases….

Truth Revolt works to make advertisers and funders aware of the leftist propaganda they sponsor – and bringing social consequences to bear to create pressure on such advertisers and funders.

True to their word, the group published a story last week asking advertisers to drop their support of Al Sharpton’s MSNBC program, Politics Nation. If this sounds familiar, that could be because it bears a striking resemblance to the actions of another group, Media Matters. Founded by liberal activist (and one-time conservative) David Brock, MM has targeted advertisers on shows like Rush Limbaugh and cable’s FOX News

Given their past ideological affinities, and their colorful take on things today, it would be amusing to see Horowitz and Brock duke it out in a debate.  But apart from the muckraking both of them relish, there’s a serious problem with campaigns that seek to silence the speech of those with whom they disagree.

Contrary to popular opinion, however, that problem is not that such campaigns violate the First Amendment.  In fact, the First Amendment doesn’t come into play at all here, except to the extent that these organizations’ right to engage in such behavior is protected against any governmental efforts as might seek to curtail them.

Indeed, when groups like Truth Revolt or Media Matters conjure up campaigns against their ideological enemies, and even when they attempt to silence individuals or media companies by attacking their commercial supporters, they are engaging in fully protected constitutional speech. But that doesn’t mean it’s right, or that it’s consistent with any decent regard for freedom of speech.

The First Amendment exists primarily to protect against governmental interference or control over speech, political speech especially, but the point of it is the protection of speech.  To put it another way, we don’t venerate the First Amendment because it protects the First Amendment; we venerate it because it recognizes the value in, and the basic human right of, the expression of one’s opinions.  Indeed, many countries practice a substantial degree of free speech without even having a First Amendment or its equivalent.

Campaigns mounted against the advertisers of disfavored programs or individuals cross the line between criticism and suppression.  The same could be said of certain attempts by third parties to use government agencies like the FCC to censor TV content they dislike.  Petitioning the FCC is legal, but calling for government censorship threatens the freedom of speech of the writers and copyright holders of those shows.

Because it’s been launched just this month, we don’t yet know what kind of reception or impact Truth Revolt will have.  But if the example of Media Matters is any guide, we can be fairly sure that it will scare away some advertisers, and that the media will cover its actions uncritically … or maybe not.

Founded in 2004, and financially supported by people like George Soros and the wealthy group of liberals that comprise the Democracy Alliance, Media Matters has the ear of many mainstream journalists and news organizations.  And given the liberal bent of much of the mainstream media, it may well be that Truth Revolt will have to depend more on the so-called conservative media for coverage of its campaigns, but probably not always, and not without effect.

Though it’s been reported that Democracy Alliance has moved in recent years more in the direction of a partisan organization favoring Democrats, rather than a progressive infrastructure-building group, the irony of its support of outfits like Media Matters can be seen in its description of itself as a group that “strives to foster an open, vibrant democracy.”

How that is consistent with funding an outfit that traffics in the 21st century’s version of book burning is something perhaps only a “progressive” can explain. And it’s something to ponder as the country celebrates Free Speech Week this month.

                                               

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 Oct. 17, 2013.

 

Posted on By Patrick Maines

Reconsidering the FCC’s Political File Rule

The FCC’s recently minted rule requiring certain broadcast stations to post their political ad files online rather than, as is currently the case, in their local public inspection files, is not the kind of issue that is likely to stir the nation’s passions.Regardless of how challenges to the rule pan out, very few people are going to run off and join the circus if things don’t go a certain way.

Still, it’s a more interesting issue than, on its face, it would appear to be – and there’s evidence that defenders of the rule, along with reporters, are not paying attention to some of the finer points being made in opposition to it.

As of today there are three separate challenges to the rule – one at the FCC, one at the Office of Management and Budget, and one in the U.S. Court of Appeals for the D.C. Circuit.  The petition for reconsideration at the FCC, signed by 12 TV station groups, is the most nuanced of the complaints.

As with the others, the FCC petitioners are mostly concerned about having to reveal online their spot-by-spot ad rates, but with this difference: The petitioners propose to aggregate such data in a way that would not reveal their ad rates but would actually make it easier for everyone, journalists included, to understand who is contributing to whom, and in what amounts, and in addition to include online the same kind of information for state and local candidates, something the FCC rule does not require.

Why the broadcasters are opposed to having to reveal online their political ad rates, when they already provide this information in their local public files, takes a little explaining.

Currently, broadcasters are required by law to offer political advertising to candidates for federal office at the “lowest unit rate,” which is the rate they charge their best commercial advertisers.  But these data are not that user friendly, and in any event requires that someone physically go to a TV station for the purpose.  (For anyone so disposed, the cumbersomeness in this only grows, as the date of an election draws near, because TV stations update their political files more frequently at that time.)

Campaign representatives sometimes do check these files to ensure that their candidates are not being charged more than their opponents, but commercial advertisers do not, and that fact touches on one of the main worries among the broadcasters: They fear that if they have to reveal online their spot-by-spot ad rates, some of their commercial advertisers (knowing that the political rates are based on what the stations charge their best commercial customers) will demand these rates for themselves.

It’s also bothersome to broadcasters that their media competitors, both in broadcasting and cable, would have access to this information, and it’s further been suggested that, as written, the FCC rule may encourage trial lawyers to file frivolous lawsuits against TV stations on behalf of losing candidates.

So in the case of the FCC petitioners, the question isn’t why broadcasters don’t want to provide their political files online (they are willing to do that), but why defenders of the FCC rule insist on requiring the online display of stations’ ad rates?

After all, one of the main goals of the campaign finance laws is to provide, in a timely way, information about candidate and issue expenditures.  It’s not the goal of these laws to compel TV stations to divulge their competitive secrets about ad rates and the like.

When asked about the unwillingness of the FCC to approve this simple modification to its rule – the Commission had this suggestion before it prior to its vote in late April – a communications lawyer prominently involved in the matter said that, in the wake of the Citizens United decision, everything touching on campaign finance has taken on a kind of “religious aspect,” such that advocates of campaign finance laws are these days unwilling even to grant such harmless accommodations as those presented by the petitioners.

Notable by their absence from the FCC petition are the station groups owned and operated by the Big Four TV networks.  Lawyers for the petitioners note that the networks supported the suggested “aggregation” approach prior to the FCC’s vote, and aver that they support the petition now.

That may be right, but if so it’s hard to confirm.  It may be, instead, that the networks don’t like the odds that the FCC will accommodate the petitioners, or that they are unhappy about the petitioners’ proposed inclusion of political ad information about candidates for local office.

For its part, the National Association of Broadcasters has appealed the FCC’s rule to the OMB, claiming that the obligation to put the political files online is unduly burdensome, and in conflict with the Paperwork Reduction Act.

There may well be real merit in these other concerns, and in the arguments to be fleshed out in the broadcasters’ lawsuit in the D.C. Circuit, but it’s the modest proposal made by the FCC petitioners that shines the brightest light on how hard it is these days to forge reasonable compromises in a deeply divided nation.

                                  

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

Posted on By Patrick Maines

Free Speech Is Real Loser in Rush Kerfuffle

Is it appropriate to defend free speech even when it’s harsh or degrading?  Whatever their political views, do people have a right to express them?  Not for the first time, such questions are being debated in the court of public opinion.

The proximate reason for the debate, this month, is some nasty things said about a law student by Rush Limbaugh, a man who – like Glenn Beck, Keith Olbermann, Michael Moore, Bill O’Reilly, Ed Schultz, Michael Savage, and Bill Maher – makes his living by saying provocative and sometimes ugly things through the media of TV, film, or radio.

For those who believe in freedom of speech, there’s a little bit of good news amid the bad in the Limbaugh kerfuffle, but a couple things demand to be acknowledged right from the start: Neither Rush, nor any of the other on-air opinionmeisters, are scholars, statesmen, or intellectuals.  They are, instead, political entertainers whose appeal reaches as far as those who share their political views, and not one inch further.

This, and one other thing: The coordinated attacks on Limbaugh and his show’s advertisers is the product of the calculated strategy of a group – Media Matters for America (MMA) – that was created precisely to try to silence, by whatever means, right-leaning organizations and individuals.

The bad news in the Limbaugh affair is that while some people are recommending that the FCC take him off the air (Jane Fonda and Gloria Steinem), or think he should be prosecuted (Gloria Allred), and after a number of his advertisers have been cowed into dropping his show, most of the media and journalism organizations one might expect to defend him have remained silent.

From the professional journalism societies to the university-based journalism reviews and the legacy “First Amendment” groups, virtually nothing has been issued in opposition to MMA’s tactics of intimidation.

It could, of course, be argued that MMA is merely exercising its own free speech rights, and that is certainly true, but that fact need not strike dumb those people who, exercising their free speech rights, could and should criticize MMA’s tactics.

According to an AP story, the next step in the war against Limbaugh is a radio ad campaign in eight cities, using as a template MMA’s earlier campaign against Glenn Beck.  Meanwhile, the head of Media Matters, David Brock, is gloating about the negative impact his organization’s efforts are having on Limbaugh’s advertisers.

In a piece published in Politico, titled “Ad exodus dooms Limbaugh’s model,” Brock says he is confident, “seeing the reaction over the previous two weeks, that sponsors will take their ad dollars elsewhere.”  He also says, in a sentence sure to be admired by fanatics and totalitarians everywhere, that MMA “along with numerous other groups, have begun to educate (emphasis added) advertisers about the damage their financial support of Limbaugh’s program can do to their brands.”

Looking beyond the campaign against Limbaugh per se,one can see that if this kind of thing persists it won’t end well for freedom of speech.  Already, for instance, a piece in the American Spectator calls for Rush admirers to contact those of Limbaugh’s advertisers who have dropped his show, the kind of thing that, along with campaigns like MMA’s, may in time have the practical effect of moving advertisers out of radio altogether.

In addition, there’s the distinct possibility that conservative groups will ape the tactics used against Limbaugh, and begin themselves to use advertiser intimidation and/or government policy to effectively shut down speech they don’t like.  Just last week Brent Bozell, head of the conservative media watchdog group Media Research Center, which has used both tactics in the past, said of the MMA campaign: “We all have free speech.”

As mentioned at the outset, there’s a little bit of light breaking through the gloom of this matter.  Though he doesn’t reference the Limbaugh affair, liberal law professor Jonathan Turley penned a piece in the Los Angeles Times this month titled “Free speech under fire,” in which he bemoans the fact that “Western nations appear to have fallen out of love with free speech and are criminalizing more and more kinds of speech through the passage of laws banning hate speech, blasphemy, and discriminatory language.”

At about the same time, liberal icon Michael Kinsley wrote a piece for Bloomberg titled “Case Against Case Against Rush Limbaugh.”  Among other poignant observations, Kinsley says this:

Do we want conservatives organizing boycotts of advertisers on MSNBC, or either side boycotting companies that do business with other companies who advertise on Limbaugh’s show, or Rachel Maddow’s?…

As we all know, Limbaugh’s First Amendment rights aren’t involved here – freedom of speech means freedom from interference by the government.  But the spirit of the First Amendment, which is that suppressing speech is bad, still applies.  If you don’t care for something Rush Limbaugh has said, say why and say it better.

In a perfect world, one wouldn’t need to be a policy wonk or a constitutional expert to understand the wisdom in this. But in this world, who knows?                                             

                                               

This piece was first published in TVNewsCheck on March 26, 2012. The views expressed above are those of the writer and not those of The Media Institute, its Board, contributors, or advisory councils.

 

Posted on By Patrick Maines

Michael Copps’ Excellent Adventure

Even in a town filled to the gunwales with sagacious and selfless public servants (wink, wink), FCC Commissioner Michael Copps, now in his tenth and final year as such, stands out from the crowd.  Evidence of his colorful take on policy issues has been on display right from the beginning.

In 2001, for instance, in just his first months on the job, Copps issued statements condemning allegedly indecent radio comments by Howard Stern (September); the TV broadcast of a Victoria’s Secret program (November); and the airing of liquor advertising (December).

When he wasn’t condemning indecent language, scantily clad women, or Demon Rum, Copps was laying the groundwork for what would become his signature spiel: a four-part jeremiad that excoriates the current state of journalism (not enough “localism” or investigative reporting); blames this state of affairs on media consolidation; recommends more spending on public broadcasting; and decries what he sees as insufficient “public interest” obligations on the licensed media (and perhaps the unlicensed media as well).

Copps is not alone in holding such views, but there’s something about the way he presents them – especially now when the political, legal, and economic winds are blowing in a very different direction – that’s borderline amusing.  Where once his fire and brimstone suggested a kind of Elmer Gantry, it now seems rather like Elmer Fudd. (“I hate wabbits!”)

Who could forget, just five months before the 2008 presidential election, the speech that Copps gave to the so-called National Conference on Media Reform?  Organized annually by those wonderful “progressives” at Free Press, Copps never misses one of these things; they are, he says, his favorite place to be.

Anyhow, in June of 2008, the commissioner was practically giddy at the prospect of working that old time religion on the nation’s communications policies:

On a night like tonight almost anything seems possible, doesn’t it?  To tell you the truth, I feel like that a lot these days.  I know we can get this done.  We can climb into the bright uplands of real democracy.  Because as we change media, we change everything.  We empower 300 million Americans to deal with all those issues that Big Media has dumbed-down or just plain ignored at terrible cost to our democracy.  There is no real democracy without media democracy.

Never mind the risible imagery of the Free Press crowd, backpacks and all, climbing those “bright uplands,” or the pristine gimcrackery in the real democracy/media democracy linkage – what’s notable is the contrast between those remarks and a speech Copps gave just a week ago.

Speaking again to the National Conference on Media Reform (who else?), Copps let it all hang out:

I’m here because I’m more worried than ever about the state of America’s media and what it’s doing to our country….  For the consolidated owners of radio and TV, the license to broadcast became a license to despoil….

What we’re dealing with here is a bad case of Big Media substance abuse – and they just can’t break the habit.  These folks have no intention, even as the economy improves, of reopening shuttered newsrooms or rehiring laid-off reporters.  They might even fire more, just to prove to Wall Street that the bottom line still rules….

You and I knew all along that the realization of our dreams waited on a new era of reform in Washington.  Then the new era came and we all just knew that media reform was right around the corner.  Twenty-seven months later we are still waiting.  Waiting for even a down payment on media reform, like an honest-to-goodness broadcast license renewal process to replace the utterly ridiculous, no-questions-asked regime now in place.  Or some public interest guidelines to encourage broadcast news and diversity and localism.

Really, it’s almost enough to make a grown man cry.  All those uplands unclimbed!  And Big Media moguls, firing people left and right, just to prove something to Wall Street.  Hearing such stuff, you know that Copps earnestly believes he’s put his finger on the problem.  After all, what else could it be?

Still, there’s something a little otherworldly about the gentleman’s lament, as though he’s been just a bystander looking in.  For the past 10 years Michael Copps has been one of five commissioners at the FCC, even chairman for a while, and since 2009 he has been a member of the majority there.

So if now, as he’s on his way out the door, Copps feels that the FCC has foozled its play, perhaps he should consider pointing one of those accusatory fingers at himself.  Maybe the problem all along hasn’t been consolidation or avarice, maybe it’s been that what ails the media, and the way forward, are more complex than to be availing of the kind of nostrums Copps and Free Press have been peddling.

Maybe the problem is that the Internet has upset the business model of almost all of the “old media,” denying them, most importantly, the kind of ad revenue that has been their lifeblood.  Seen from this perspective, exhortations to deny the efficiencies of consolidation, or to require more stringent “public interest” obligations, or to recommend greater funding of public broadcasting are not just irrelevant, they’re appalling.

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

Posted on By Patrick Maines

Cute as a Button: The Schemes and ‘Confessions’ of Reed Hundt

Sorry to say, there are people in public life who, were hubris a lubricant, could forego ambulation and just glide on down the road.  Reed Hundt, the former chairman of the FCC, is one such person.

Hundt is back in the news these days because policies he clandestinely pursued while chairman are now thought by some (including Hundt himself) to be coming to fruition at the hands of his former FCC aides and confidantes, one of whom, Julius Genachowski, is now chairman.

This, and more, was revealed in a speech Hundt gave last month at Columbia University.  The subject of his address was the national broadband plan, then set to be released by the FCC just a week later, and what he characterized as a “confession or admission” of the role he played, years earlier, in using his office as chairman to systematically elevate broadband, at the expense of broadcasting, as the “common medium.”

To quote the great man himself: “The choice to favor the Internet over broadcasting was initially made in first-draft form by some of the people who are now running the FCC.”

One can only imagine how happy this revelation must have made the current FCC chairman since, if we’re to believe Hundt, not only was Genachowski a co-conspirator, so to speak, he was just a tagalong – the horse to Hundt’s Lady Godiva.

Lest you think for even a minute that the gentleman feels remorse about any of this, be advised: He doesn’t.  Quite the contrary, Hundt is pleased as punch with the way he handled things, amused even, and he wants you to see it the same way.  Rather like a school boy pulling a prank on the headmaster, Hundt sees his scheming not only as smart and justifiable but as positively cute in the way it confounded all but those few in the know.

How else to explain his characterization of his efforts to suppress broadcasting – by delaying, for instance, its transition to HDTV – as “a little naughty?”  Or his boast, re the ability of people to use the telephone network, for free, to connect to the Internet, as a case of the government “stealing the value from the telephone network and giving it to society?”

Not everyone sees the humor.  One who is particularly unamused is Gordon Smith, formerly Senator Smith, and now head of the National Association of Broadcasters. As reported in Broadcasting & Cable, Smith had this to say when asked what he thought of Hundt’s speech: “Frankly, I was rather offended, as a former member of the Senate Commerce Committee, that his secret musings were never shared with the elected representatives of the American people.”

Actually, Hundt’s Columbia performance isn’t the first time he’s spoken (what shall we call it?) “candidly.”  Years earlier there was the book, You Say You Want a Revolution, that he wrote not long after leaving the FCC.

Sandwiched between characterizations of some of his fellow commissioners as the “Gang of Three,” and innumerable accounts of the commercial rabble with whom he was obliged to spend time, Hundt wrote some things that are of a piece with his Columbia speech.

One of these describes a meeting he had in 1995 with Bill Gates. Hundt writes:

We had come to appeal to Gates’ self-interest.  As everyone on the West Coast knew, computing was heading directly toward communications….  With Gates as commander-in-chief, the entrepreneurs could win a lobbying war even against the powerful broadcasters….

I wanted Gates to go after the spectrum, because the auction was such a pure and sensible goal.  Later, depending on how the meeting went, we would ask for his help in connecting every classroom to the information highway….

If those who bought the spectrum at an open auction could ignore the networks’ deal with Congress and abandon high-definition television, they could transmit digital information to PCs….

Gates rocked in his chair.  His eyes magnified by his glasses, he stared at me, and asked urgently, "Does anyone else know about this?"

Elsewhere in the book, Hundt describes his attendance at a meeting hosted by the Gores (Tipper and Al), also in 1995, on the topic of Families and the Media:  

Then the President and Vice President each said they would support the children’s television initiative.  I had become part of the Administration’s political agenda – perhaps the first time in history that FCC issues were in the center ring of the political circus.  Al singled me out in the crowd.  I stood up.  The auditorium applauded.  The event made the national news.  It was intoxicating; it was much more important to be there in Nashville than at, say, an NAB convention.

Many people would agree that the Internet already is, or will become, the “common medium.”  And in an age when Saul Alinsky is held up as a role model, and the ends justify the means, views and acts like Hundt’s will almost certainly escape widespread censure.  But there’s this one small problem with the government picking the industrial winners and losers: What happens if they’re wrong?

Of course we know that governmental estimates and projections are never wrong.  But imagine that sometime in the future it happens.  Wouldn’t that be something?  Because, you know, in that case the government would not only have distorted the marketplace, it might have created problems it hadn’t even considered.

As it happens, there’s a claim in Hundt’s book that hints of this very problem.  In the same chapter in which he wrote of his meeting with Bill Gates, Hundt claimed that “big-screen televisions would cost so much that less than one percent of Americans would buy them.”

Imagine our surprise, then, when we check now with people at the Consumer Electronics Association, and are told that, in 2010, almost half (about 47 percent) of all TV sets sold are big screen.  Could this mean, Hundt’s furtive schemes notwithstanding, that the Internet won’t be the only common medium?  Go figure.

Cross posted at Huffington Post, April 21, 2010.

Posted on By Patrick Maines

Stuart Benjamin: The FCC’s ‘Spectrum Reformer’

Amid their other problems, broadcasters now have a new one: the FCC’s recently appointed Scholar in Residence, Stuart Benjamin, a law school professor at Duke University.  According to an FCC press release, Benjamin will work on “spectrum reform,” among other issues.  The problem that broadcasters have is with some articles written by Professor Benjamin, earlier this year, on that very subject.

One such, “Roasting the Pig To Burn Down the House,” seeks to answer the question being asked by all fair-minded people: “Should we welcome new regulations on broadcasters that will make broadcasting unprofitable?”  And the answer, according to Benjamin, is “yes.”  Or, as he puts it: “Some regulations that would be undesirable standing on their own will be desirable once we factor in the degree to which they will hasten the demise of over-the-air broadcasting.”

In the same piece Professor Benjamin happily acknowledges, in passing, something that broadcasters have argued – namely that some new administrative regulations, like the so-called advisory boards, “could prove fairly costly.”

A few months later, whilst opining on the Volokh Conspiracy blog site, Benjamin gleefully commented on another rueful development, a Supreme Court decision on indecency regulations (FCC v. Fox) that, as he puts it, “makes life worse for local stations” that can’t afford tape delay systems.  As with the added expense of advisory boards, Benjamin sees this too as a good thing.  “Local television broadcasters,” he says, ”have a new disincentive to airing live local events – and viewers have less reason to watch local broadcasters.”

Never mind for a minute that Benjamin’s comments are informed by what he sees as the inevitable collapse of broadcasting (he gives it only about 20 years to live, even without a nudge), and that he sincerely believes that broadcast TV is not the highest and best use of the spectrum.  The remarkable thing is why the FCC would bring aboard, and give this particular portfolio to, someone with Benjamin’s baggage?

It would be funny if it were a joke.  But as one long-time broadcasting executive put it, it raises real questions about the kind of personnel vetting that’s going on at the FCC.  If views like those that Benjamin has published aren’t enough to disqualify him from appointment to the position he’s just been given, what would it take?  A manual on how to poison station managers?

The dust has barely settled on the government’s years-long campaign to engineer TV’s digital conversion – a conversion that many broadcasters think holds great promise for their industry – and along comes this character, as out of some film noir production, whose ghoulish fantasy is to put broadcasters out of the broadcasting business.

Not to worry, though.  Once broadcasting has been polished off, the FCC can focus all its energy on regulating the Internet.

Posted on By Richard T. Kaplar

Dueling Philosophies on Minority Ownership

What happens when you invite the FCC’s two veteran commissioners to speak about the media at a Rainbow PUSH Coalition symposium?  When one of the commissioners is Michael Copps, and the other is Robert McDowell, you get two very different views of where things stand and how they could be improved, as we saw on Nov. 20.

Copps, a Democrat, is a long-time foe of large media companies.  So he uses phrases like “excessive media consolidation,” “big media run awry,” “tsunami of consolidation,” and the punchline: “Minorities have suffered greatly because of consolidation.”  

One of his proposals to “put some justice back into our ownership policies” would involve a “public interest licensing system for broadcasters.”  Copps would like the Commission to “go back to having some guidelines to make sure stations are consulting with their audiences on what kinds of programming people would like.”  But wait, I think we already have such a system.  It’s called “ratings.”

Copps also favors something called a “full file review,” which would have the Commission award certain broadcast licenses by considering an applicant’s “experiences in overcoming disadvantages,” including race and gender discrimination.  (This sounds like a lawsuit waiting to be filed, but that’s another story.)  In other words, Copps views the FCC as the referee in a fight between “big media” and the little guy, where the solution is a tight rein on ownership regulations.
    
Robert McDowell sees things differently.  For minorities to get ahead in broadcasting and other media, Republican McDowell is quite clear about what is needed: access to capital.  “An important priority for me in my three-and-a-half years on the Commission has been to help create a competitive environment that allows minority entrepreneurs and other new entrants a real opportunity to build viable communications businesses,” he told the Rainbow PUSH group.
    
McDowell noted that he enthusiastically supported the Commission’s 2007 Diversity Order, which contained nine measures to help small entrepreneurs acquire capital or use their financial resources more efficiently.  He has also called for a tax certificate program to help disadvantaged businesses.  
    
At the same time, McDowell is keenly aware of the unintended and hurtful consequences of regulations (of the sort favored by Copps) aimed at helping small, local media owners  – like a “localism” proposal to reinstate a 20-year-old rule requiring stations to be manned throughout their broadcast day (technology notwithstanding), or onerous “enhanced disclosure” requirements so complex that they could require the hiring of additional employees.   
    
In short: On the question of disadvantaged minorities, Copps sees the culprit as large media companies.  From his perspective, the FCC must be a strict regulator of media ownership.  McDowell sees the culprit as the lack of access to capital.  He would envision the FCC as a facilitator, creating policies to generate financial opportunities for entrepreneurs.
    
Whose view is more accurate and whose solution is more likely to succeed?  On both counts, my money is on McDowell.   

Posted on By Patrick Maines

Commissioner Michael Copps and Media Ownership

Owing to his earnest and mild-mannered (if intellectually scruffy) ways, FCC Commissioner Michael Copps has rarely inspired anger.  No matter how wrong-headed his views – and he’s been wrong about virtually everything for the whole of his time as a Commissioner – he’s been accorded that kind of tolerance that people bestow on those seen to be sincere and to mean well.

That’s about to change.  In the midst of the worst economy – and potentially fatal problems for that part of the economy occupied by American newspapers and broadcasters – Copps is saying and doing things that infuriate.

The most recent, and onerous, examples occurred just yesterday and today when, according to stories in Broadcasting & Cable, Copps demonstrated, yet again, how insulated he is from the world of fact and logic.

Presiding (alone) over an FCC workshop convened to hear the views of academics on the subject of media ownership on Monday, “Copps warned against putting too much stock in the doom and gloom scenarios about the health of TV and newspapers, suggesting that trying to ‘save’ the media should not translate to a lighter re-regulatory hand.”

Then today, at yet another workshop, Copps expressed the opinion (as reported by B&C) that “if the FCC can’t rejuvenate shuttered newsrooms, put the brakes on ‘mind-numbing "monoprogramming"’ and otherwise turn the tide … of consolidation, then ‘maybe those who want the spectrum back have the better of the argument after all.’”

And so there you have it.  The parlous state of the TV and newspaper industries, according to Michael Copps, is nothing to be worried about.  It’s just a rumor.  No need to lighten the regulatory load.  In fact, if broadcasters don’t start programming the way Copps would like, maybe we’ll just take their spectrum away from them.

The series of workshops in question have one more day to run. Plenty of time, in other words, for Copps to give us the benefit of even more of this stuff.

Posted on By Prof. Laurence H. Winer

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.