Supreme Court Lets Red Lion Live

The hunt for Red Lion goes on.

The Supreme Court has declined to review the latest case that offered the Court the opportunity to declare its 1969 Red Lion decision – and, more importantly, the spectrum scarcity rationale on which it was based – no longer viable. As a result, broadcasters will continue to bear the second-class First Amendment status to which they have been officially subjected for nearly 50 years.

That status was confirmed by the Supreme Court in its 1969 decision in Red Lion Broadcasting Co. v. FCC. The Court there upheld the constitutionality of the Fairness Doctrine, an FCC-crafted policy (abandoned decades ago) that unquestionably would have been unconstitutional if applied to, e.g., print media. The Court’s rationale? Spectrum is scarce, and more people want it than can have it, so the government can regulate it in ways not permitted with respect to other, supposedly less scarce, media.

Minority Television Project (MTP), licensee of Station KMTP-TV in San Francisco, challenged the continuing validity of that notion. But the Supremes declined to take the bait. As is customary, no reason was given.

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FCC Gives Robocallers 2.9 Million Reasons to Lawyer Up Ahead of Time

Ignore the FCC’s warnings at your financial peril.

Telemarketing is a fact of modern life, mainly because it can be a very efficient and effective way to communicate a message (commercial, political, etc.) to a huge audience. But that doesn’t mean that the audience necessarily likes to receive telemarketed messages: many, perhaps most, consumers don’t. That’s probably even truer when it comes to “robocalls” (i.e., calls that are dialed automatically or play prerecorded messages), a type of unsolicited marketing that involves no actual human interaction, at least on the robocaller’s end. And it’s probably truer still when the robocall is directed to a cell phone or mobile device where the recipient can end up paying for the minutes.

Responding to public sentiment more than two decades ago, Congress (in the Telephone Consumer Protection Act (TCPA)) banned the use of automatic calling (both live and prerecorded) to mobile devices except in emergency situations or when the company has the express written consent of the recipient of the call. In contrast to landline numbers, mobile phone subscribers don’t have to put their numbers on the Government’s Do-Not-Call list to get this protection. (See our earlier post and this FCC Advisory that provide details on some of the TCPA’s requirements.)

Charged with enforcing the TCPA’s proscriptions, the FCC has dogged TCPA violators aggressively and expensively. Just ask Dialing Services, LLC, a robocaller that, according to the FCC, made almost 200 unsolicited robocalls to cell phones. (Actually, it made more than 4,700,000 such calls – but is being penalized for only about 200 of the most recent. Read on for more about that.) And for those 200 calls, it’s being fined nearly $3 million.

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Drone Update: While FAA Continues to Swat at Drones, an Appeal of its Policy Takes Off

FAA “looks into” commercial drone use while Texas group seeks D.C. Circuit review of FAA drone policies.

A couple of weeks ago we reported on the FAA’s efforts to discourage the use of drones a/k/a “Unmanned Aircraft Systems” (UAS) a/k/a model aircraft. We have a couple of updates on that front.

First, in the aftermath of the recent spate of tornadoes that ripped through the South, it’s been reported that the FAA is investigating a “storm chaser and videographer” who used a drone to document the effects of a tornado in Arkansas. The captured images were apparently used by a Little Rock TV station in its coverage of the storm damage. According to a report in the Arkansas Democrat-Gazette, the FAA “is looking into” the station’s use of the drone-acquired footage. (The report also indicates that other Arkansas stations are using drones, although whether the FAA is “looking into” their drone use is not clear.) Since post-storm damage assessment is a use for which drones are especially well-suited – a use which reduces the need for exposing additional personnel to potentially dangerous circumstances – the FAA’s vaguely menacing consideration of that use seems a bit churlish.

But if you really want churlish, check out our second update.

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Drone Even Go There: On Newsgathering, Drones and the FAA

The FAA’s anti-drone posturing: procedurally, practically and constitutionally unsound

They say that tragedy plus time equals comedy. Sometimes that may be true. But when the tragedy is severe enough, tragedy plus time equals tragedy – leading, at best, to reflection.

Reflection on a recent tragedy has led to this post.

In March, a KOMO-TV News helicopter crashed in Seattle, killing two people. This kind of tragedy can be avoided in the future, at least in part through the use of Unmanned Aircraft Systems (UAS) – more commonly referred to as “drones”. But I fear that the current Federal Aviation Administration (FAA) stance on the use of drones will prevent news operations from employing this more nimble, informative and safer option in the future.

Note that I referred to the FAA’s “stance” on drones, rather than its “rules”. That’s because the FAA does not now have (and apparently has never had) any actual “rules” governing drone use. But that’s not stopping the FAA from engaging in bluff and bluster – along with at least one threat of a five-figure fine – in an effort to discourage drone use by, among others, news gatherers.

The good news – at least from my admittedly-biased-in-favor-of-journalists perspective – is that courts may not stand for the FAA’s shenanigans.

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R.I.P.: Critical Information Needs Study

We note the passing of an FCC effort to probe the editorial standards and processes of broadcasters.

The FCC’s Multi-Market Study of Critical Information Needs, known to many simply as the Critical Information Needs, or CIN, Study, is dead. On February 28, a Commission spokesperson announced tersely that the agency “will not move forward” with the CIN Study. No official cause of death was given, but it appeared that the study was unable to survive the firestorm of negative reaction it had attracted in recent weeks. A previously announced test-run of the study set for Columbia, South Carolina has presumably been canceled.

The CIN Study’s Origins

The CIN Study had been in development, largely unnoticed, for two years. To a number of regular Commission observers its origins are something of a mystery.

The study first emerged publicly in early February, 2012, when the FCC’s Office of Communications Business Opportunities (OCBO) issued a Request for Quotation (RFQ) for a “Barrier Study” (also described as a “Review of the Literature Regarding Critical Information Needs of the American Public”). How long the concept of such a study had been percolating within the Commission up to that point is not clear.

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D.C. Circuit Rejects Challenge to Sunsetting of Viewability Rule

Concurring opinion raises questions about constitutionality of must-carry rules

The D.C. Circuit has given the FCC and the cable industry a belated Christmas present. It has rejected a challenge mounted by a number of broadcasters (including the NAB) to the FCC’s 2012 revision of its “viewability” rule. And one member of the three-judge panel went considerably further, suggesting that the entire cable must-carry regime is on extremely shaky constitutional footing.

The viewability rule, adopted in 2007, applied to “hybrid” cable companies. (“Hybrid” cable operators are those that opted, after the 2009 DTV transition, to provide an analog tier of programming – consisting of local TV signals and, in some cases some cable channels – so that subscribers with analog receivers would not require additional equipment.) The rule provided that such operators could either (1) provide the digital signal of all must-carry stations in analog format (in addition to any digital version carried) to all analog cable subscribers, or (2) transition to an all-digital system and carry the signal in digital format only, provided that all subscribers have the necessary equipment to view the broadcast content. 

The rule was scheduled to sunset in June, 2012 and, after a rulemaking proceeding, the Commission decided to let that happen (although the Commission did tack on an additional six months). While hybrid cable operators remain subject to a general “viewability” requirement, since December, 2012 they have had significantly greater flexibility in meeting that requirement.

Concerned that the sunsetting of the original viewability rule could threaten their ability to reach a significant number of viewers, several broadcasters challenged the FCC’s decision.

To no avail.

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Noncommercial Stations Out West Back to Being Noncommercial . . . For Now

Ninth Circuit en banc reverses 2012 panel decision, restores prohibition against “issue advertising” on NCE stations.

We all know that noncommercial (NCE) broadcasting stations are just that – NONcommercial.  Section 399b of the Communications Act forbids them from accepting advertising on behalf of for-profit operations; it also forbids advertising both for political candidates and for expressing the advertiser’s views on any matter of public importance. (The difference between the latter two? Think “Vote for John Smith” vs. “America’s farmers are its backbone”.)

As we reported back in 2012, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit tossed those last two prohibitions (i.e., the ones against political and issue advertising).

That wasn’t the end of the matter. As we thought it might, the FCC asked the Ninth Circuit en banc to take another look at the case. And now the 11-judge court sitting en banc has restored (by an 8-3 vote) the prohibitions against political and issue advertising

But there’s reason to believe that the case may not be over yet.

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Indecency with a Spanish Accent?

Consent decree with Liberman Broadcasting allows FCC to avoid having to spell out how indecency policies apply to Spanish-language programming.

Something – it’s hard to say exactly what – recently occurred on the indecency front.  I learned about it first at the Impact Awards ceremony presented by the National Hispanic Media Coalition (NHMC).  NHMC President/CEO Alex Nogales announced excitedly that Commissioner Jessica Rosenworcel (who was being honored that night) had brought “good news” about a matter in which NHMC was involved.  The news: the FCC had entered into a consent decree with Liberman Broadcasting to resolve a complaint, filed by NHMC (along with the Gay & Lesbian Alliance Against Defamation (GLAAD)), targeting the Spanish-language TV talk show “José Luis Sin Censura” (translation: “José Luis Uncensored”).  Liberman’s Los Angeles-area TV station had broadcast the Luis show, complete with images and language that NHMC and GLAAD thought were indecent.  (It stopping airing the show in 2012.)

I wrote about the complaint when it was filed back in 2011.  NHMC and GLAAD alleged the repeated use of sexually-oriented terms such as “pinche” and “culero”, along with anti-gay epithets (“maricón”, “joto”, “puñal”) and anti-Latino slurs (e.g., “mojado”).  They also suggested that the FCC might be applying different indecency standards – or at least different enforcement policies – against Spanish-language programming as opposed to the English-language equivalent.  (That last point is one that I had been asked to address by Billboard in a 2006 article – demonstrating that the NHMC/GLAAD concerns were neither new nor unique to them.)

So what did the FCC do to Liberman?

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The Swami . . . Online Again!

Kevin Goldberg discusses the Free Flow of Information Act.

Now available on a small screen near you – the Swami. That’s right, Kevin Goldberg, nearly live and in person, expounding on the Free Flow of Information Act for more than seven minutes. He explains the basics of the law, discusses whether this is the federal shield law we’ve all been looking for, and in full Swami mode prognosticates about its prospects for success. This is a follow-up to Kevin’s recent post about the Senate Judiciary Committee’s passage of the bill. The interview was produced for LXBN TV, a cool service from our friends at LexBlog, the blogging platform that hosts CommLawBlog. Just click on the video below.

 

Good News: One Step Closer to a Federal Shield Law

Free Flow of Information Act clears a crucial legislative hurdle.

We have some good news for journalists  – and broadcast stations that still boast real news operations! 

The Senate Judiciary Committee has approved the Free Flow of Information Act (that would be S.987) by a 13-5 vote. If ultimately enacted (more on that below), this bill would establish a federal “shield law” or “reporter’s privilege”.  As a result, certain journalists would be protected from having to testify in federal court – a protection most often invoked by the reporter unwilling to disclose the identity of a confidential source.  Journalists’ communications records would also not be subject to subpoena by federal authorities seeking to use those records to identify a reporter’s source.

The reporter’s privilege is nothing new.  Approximately 40 states and the District of Columbia already have their own shield laws.  Every other state (with the exception of Wyoming) affords either absolute or qualified privilege based on state court precedent.  But the Free Flow of Information Act would create a privilege applicable in federal proceedings for the first time ever.

The privilege would be “qualified”.  That means that the government or an interested civil litigant could still force the journalist to testify or produce documents in certain situations.  (The precise showing necessary to overcome the privilege would vary according to the type of case – civil, criminal, cases involving the receipt of classified information.)  Nevertheless, the protections afforded by the proposed shield law would apply across the board, not just to cases involving national security issues.  In other words, it would benefit a wide range of news operations.

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Update: Deadlines for Indecency Comments Extended

If you have the vague sense that you might like to file comments in response to the bizarre invitation for comments relative to the FCC’s indecency policies, but you’re still trying to figure out exactly what those policies are in the first place, you're in luck. The General Counsel’s office and the Enforcement Bureau have extended the deadlines. Comments are now due by June 19, 2013 and reply comments by July 18. Unfortunately, the public notice announcing the extensions does not shed any more light on the indecency inquiry. As previously reported here, the inquiry posed on April Fool’s Day is, at best, cryptic and unilluminating, so much so that it’s difficult to imagine that anything useful could possibly come from it. But for those of you who may be champing at the bit to toss in your two cents’ worth, you now have a little more time within which to hone your prose.

Update: Indecency Comment Deadlines Established

Indecency public notice hits the Federal Register.

Earlier this month we reported on an odd public notice soliciting comments about the FCC’s indecency policy. That notice has now been published in the Federal Register – but that doesn’t mean that the notice makes any more sense now than it did when it first appeared.

The title of the notice still says that the FCC is seeking “comments on adopting egregious cases policy”, but that’s the only time the term “egregious cases policy” shows up. As a result, it’s far from clear exactly what we’re supposed to be commenting on. You would think that, if the FCC does have some “egregious cases policy” currently in effect – which is what the full text of the public notice released on April Fool’s Day indicated – the Commission might let us all in on the precise details of that policy so that we might be able to comment on it at least quasi-intelligently. Apparently not.

As we noted in our initial post, the utility of any record likely to be compiled in response to the notice’s nebulous invitation for comments is dubious. How, after all, is a commenter supposed to organize his/her/its comments in a coherent and useful way? And how can the Commission’s staff be expected to process those comments? Without any apparent context or direction, it’s hard to see what the staff can do with them.

If this is how the Commission proposes to deal with the indecency issue, that issue is likely to be with us, unresolved, for many years to come.

In any event, the Federal Register publication establishes the deadlines for comments in response to the notice. Comments are due by May 20, 2013, and reply comments by June 18.

Indecency Alert: New Unannounced "Egregiousness" Standard Now Apparently in Effect, But More Changes May Be On the Way, Eventually

Odd public notice also touts herculean accomplishment: summary dismissal of “more than one million” pending indecency complaints

In a public notice that surely ranks among the most bizarre any of us are likely to see, the FCC’s Enforcement Bureau and General Counsel have made three startling announcements about the Commission’s broadcast indecency policy. According to the notice, for the last seven months or so the Enforcement folks have been applying a new – but not formally announced – standard of “indecency” which is not subject to any official definition, as far as we can determine. And while the Enforcement Bureau and GC both commit themselves to continuing to implement that undescribed “standard”, they have now initiated, in a semi-comic way, an inquiry into some possibly significant changes to major elements of the Commission’s indecency policy.

This could have been an April Fool’s Day prank, but we’re guessing it wasn’t.

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Supreme Court 2013 Season - The Swami Takes His First Shot

The Supremes hear arguments about the “citizens-only” provision of Virginia’s Freedom of Information Act

[Blogmeister’s note: The Supreme Court recently heard arguments in McBurney v. Young, a case involving a “citizens-only” limitation on state FOIA rights in Virginia. This was smack in the wheelhouse of Kevin Goldberg, a/k/a the Swami, who has long specialized in matters affecting access to information and the rights of the media. He attended the argument and provided this report.]

If you want to hear (and see!) what I had to say right after the McBurney argument, click here – that’s where you’ll find a video interview with me conducted by our friends at LexBlog only hours after the argument wrapped up. In the interview I hit the high points of the case, but for you, my faithful readers, I’ll flesh out a few more facts and the reasoning behind my prediction.

The case started when two individuals – neither of them a Virginia citizen – filed requests for information under the Virginia Freedom of Information Act.  Mark McBurney requested records relating to child support owed to him by his ex-wife; Roger Hurlbert sought property assessment records for business purposes.  Each request was denied because the Virginia FOIA is (with some limited exceptions) available only to Virginia citizens and neither McBurney nor Hurlbert is a Virginia citizen.

Those denials were upheld by the U.S. District Court for the Eastern District of Virginia, which held that Virginia’s law does not unreasonably discriminate against non-residents. The case was appealed to the U.S. Court of Appeals for the Fourth Circuit.

I got involved in the case at that point.

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Ain't No Sunshine: Introducing "The Federal Communications Commission Collaboration Act of 2013"

[Blogmeister’s prologue: Kevin Goldberg has a second-to-none track record when it comes to defending the First Amendment and Open Government. Named the outstanding constitutional law student in his graduating class at the George Washington University Law School, he has served as a member of the Board of Directors of the District of Columbia Open Government Coalition, a member of the Executive Committee of the Board of Directors of the National Press Foundation, a member of the Board of Directors of the Public Participation Project and the Chair of the Legislative Affairs Committee of the Media Law Resource Center. In 2006, Kevin was inducted into the National Freedom of Information Hall of Fame for his continued and superlative service in pursuit of open government. He is the youngest of the current 56 members in the Hall. When he has something to say about the public’s right to know, we listen. Kevin has something to say about the proposed “Federal Communications Commission Collaboration Act of 2013”.

We expect some of our readers may disagree with Kevin’s views, and we expressly invite those who do disagree to share their views with us in comments, or possibly even in a guest post.]

Nearly 50 years ago, Congress passed the federal Freedom of Information Act (FOIA), giving all of us citizens access to the records of every executive branch agency (subject to nine very narrowly-construed exceptions). The FOIA embodies the fundamental premise that the public has a right to know how the government does the public’s business.

A decade later, in the wake of the Watergate scandal, Congress passed the Government in the Sunshine Act (a/k/a the Sunshine Act), again seeking to ensure the public’s right to know. (In Congress’s words, “Government is and should be the servant of the people, and it should be fully accountable to them for the actions which it supposedly takes on their behalf.”) The Sunshine Act gives us all access to the meetings of certain executive branch agencies, much as the FOIA give us access to those agencies’ written records.

Maybe not for long, though, at least as far as the FCC is concerned.

Bills proposing the “Federal Communications Commission Collaboration Act of 2013” have been introduced in Congress – as S. 245 by Senators Amy Klobuchar, D-MN, and Dean Heller (R-NV) and H.R. 539 by Representatives  Anna Eshoo (D-CA), John Shimkus (R-IL), and Mike Doyle (D-PA). Under the bills’ provisions, FCC Commissioners would be allowed to engage in a significant amount of regulatory activity outside of the public’s view.

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Update: Supremes Shut Down FCC Appeal in Janet Jackson Case

Eight years after the half-second exposure, the Janet Jackson case is over – but the indecency debate lives on.

The Janet Jackson case is, for all intents and purposes, finished. 

With a one-sentence order stuck toward the end (at page 13, to be precise) of a routine 15-page listing of mundane orders, the Supreme Court has stuck a fork in the long-running indecency case. Specifically, the Supremes have declined the FCC’s invitation to review the most recent decision from the U.S. Court of Appeals for the Third Circuit, which had twice found fatal flaws in the FCC’s treatment of the Jackson case.

But, as has been customary with just about everything surrounding L’Affaire Jackson, even the Supreme Court’s final order included some unexpected flair.

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The Swami . . . Online!!!

 He’s ready for his close-up.  Are you?

You’ve read his stuff, and you’ve probably wondered – who is this Man of Mystery they call the Swami? Now you can hear him and see him as he expounds, with customary eloquence, about the Supreme Court decision in FCC v. Fox Television Stations. The Swami, Kevin Goldberg, is now available to you on the small screen (probably the one you’re reading this on). He quotes Cher. He quotes Bono. He quotes Nicole Richie. He does it all. Is this a great country or what?

Kevin’s online appearance comes to you thanks to our good friends at LexBlog, the legal-focused blogging platform that hosts CommLawBlog.  He sat down for a short Skype-based interview with LexBlog’s Colin O’Keefe, answering a few questions regarding the history of the case and the issue, the Court’s decision (and why it was unanimous), and the likely impact on broadcasters.   This is part of LexBlogs “LXBN TV”, a cool service that brings blog posts to life.

You can see all 12 minutes and 48 seconds of the interview here.

FCC v. Fox (Supreme Court - Round Two): The Swami Explains

[Blogmeister’s Note:  As we reported, after months of deliberation, the Supreme Court resolved the Fox/NYPD Blue indecency case by, um, not really resolving it. We were hoping that the Court would provide a clear and conclusive resolution of the longstanding tension between the First Amendment, on the one hand, and the FCC’s efforts to regulate “indecency”, on the other. Instead, the Court snuck out the side door, choosing to ignore the First Amendment and rely instead on a very narrow application of the Fifth Amendment. So the First Amendment question lives on, to be decided some other day years from now.

The Court (in a unanimous decision authored by Justice Kennedy) held that the FCC could not penalize Fox or ABC for the particular broadcasts at issue (those would be a couple of awards shows in which presenters let slip with one or two “fucks” or “shits” and an episode of NYPD Blue featuring a very brief glimpse of Charlotte Ross’s tush). While that bottom line ruling is no doubt a relief to Fox and ABC, it does little for the rest of us. Or does it? 

For insight into what the Court’s decision means going forward, we called on the Swami, Kevin Goldberg. In response, the Swami sent us a gazillion-page opus whose central motif was based on a classic – and entirely on point – catchphrase from one of the pinnacles of 1980s cinema.  That’s not what we had in mind, so we have pared his response down here. Devout Swami followers who would like a complete copy of Kevin’s disquisition in its (more or less) original form may request copies through the “comments” option, below.]

Blogmeister: So Swami, when you reported on the oral argument in the Fox case, you counted the votes as 5-3, maybe 4-4. The actual vote turned out to be 8-0. In the words of Mike LaFontaine, “Hey! Wha happened?

Swami:  I may have missed on the vote count, but I nailed the result – both in terms of the victor and, more importantly, the narrowness of the holding. 

Why was I so sure that the Supremes would keep it tight?

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FCC v. Fox: Heading Back to the Second Circuit, Again

Supremes toss FCC's Fox, NYPD Blue actions for lack of notice.

It looks like we may all be going on another spin around the Indecency Merry-Go-Round. The Supreme Court has vacated the Second Circuit’s most recent decisions in the Fox and NYPD Blue cases and shipped them back down for further proceedings. The Supremes’ decision has just been released, so we have not yet had time to get it into the hands of the Swami for full-tilt swamification. Look for a post on that shortly.

In the meantime, a very quick read of the Court’s decision – which was 8-0, with Justice Ginsberg issuing an interesting concurring opinion and Justice Sotomayor sitting this one out – indicates that our earlier prognostication got the correct bottom line (even if we didn't get the justice count quite right). While the decision to vacate the lower court’s rulings, which favored the broadcasters, would ordinarily be seen as a victory for the FCC, that is not the situation here. Instead, the Supremes have determined that neither Fox nor ABC had adequate notice of exactly what the FCC’s indecency policy prohibited. Accordingly, the Commission’s determinations penalizing Fox and ABC for their broadcasts have now been set aside.

But, as we predicted, the Court stopped short of even thinking about reconsidering its 1978 Pacifica decision.

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Media Access Project Exits Stage Left

Public interest communications “law firm and advocacy organization” closes up shop

Media Access Project (MAP), a long-time player in the soap opera that is communications law, has left the show. As of May 1, MAP suspended operations “after evaluating the difficult funding environment facing MAP and other progressive public interest groups.”

Founded in 1973, MAP assumed a variety of roles over the course of its 39-year history. To some it was a tough litigator, a thoughtful advocate, and a mouthpiece for a wide range of interests that might not otherwise have had a mouthpiece. To others, it was a self-promoting buttinsky given to advancing positions of questionable (if any) validity. A seemingly constant presence in the mainstream press, it could be a total pain in the tail to those with whom it disagreed. Many – maybe even most – “industry” representatives may have disagreed with many – maybe even most – of MAP’s positions and tactics. But MAP, apparently indefatigable and unquestionably resourceful, made its voice heard, for better or for worse.

MAP prevailed in a number of important cases before the Commission and the courts and succeeded in swaying legislative policy. But MAP’s more lasting impact will likely be the fact that it spawned, directly and indirectly, a new generation of like-minded organizations that will carry on MAP’s work into the 21st Century. The ongoing work of those organizations will be MAP’s true legacy.

The demise of MAP has a particular, personal, effect on this blogger.

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FHH Welcomes Back Kathy Kleiman

Internet expert returns to co-head Internet Law and Policy Group.

Fletcher Heald & Hildreth, P.L.C. is pleased to welcome Kathy Kleiman back into the FHH fold.  Kathy was an associate with the firm in the 1990s, but she left to explore the then-just-developing world of Internet Law (but not before she had co-founded the firm’s Internet Law Group, one of the first of its kind).  She now returns as FHH’s Internet Counsel to co-lead its Internet Law and Policy Group. 

To say Kathy is well-suited for the job is an understatement.  She helped found the Internet Corporation for Assigned Names and Numbers (ICANN), the organization that coordinates the domain name system without which the Internet wouldn’t be the Internet.  Kathy was a key drafter of the domain name dispute policy everyone uses today, and an editor of many sections of the rules governing new top-level domains.  She has traveled to ICANN meetings in more than a dozen countries on six continents and spoken on Internet Free Speech, intellectual property protections, fair use, privacy and due process around the world.

Kathy is Beantown-educated – Harvard undergrad, BU law (both with honors, thank you very much).  She currently lives in Falls Church, Virginia, where she dabbles in community leadership and politics when she’s not tending to her two kids.  In what passes for free time chez Kleiman, she is also producing a documentary about the six women who programmed ENIAC, the world’s first modern computer, and thus founded the field of modern programming. (Want to know more about Kathy’s background? Check out her extensive résumé here.)

Kathy will be working with clients on a wide range of projects relating to: domain name conflicts; challenges and opportunities likely to be encountered in connection with new top level domains; website protections; and Free Speech and intellectual property issues in the Internet age.  And, if the Blogmeister has anything to say about it, she’ll be a regular contributor here.

She can be reached at 703-812-0476, by email at Kleiman@fhhlaw.com, or at Skype ID Kathy.kleiman.

Access of Evil? FCC Unveils NOITALS

Don’t be surprised when Broadband the FCC Cat pops up on your screen.

The Commission has long bemoaned the fact that the Great Unwashed are “woefully ignorant” of the nitty-gritty details of their Internet access. Not for long. That bell you just heard was signaling the start of classes at the University of FCC, Online Division. Attendance is required. Prepare to get schooled.

In a surprising move – made all the more surprising by the low-key way in which it was disclosed – the Commission is taking aggressive steps to correct the rampant problem of high tech know-nothingism.

Meet NOITALS – the Nationwide Online Information Tracking and Logistics System. (Apparent pronunciation: “KNOW-IT-ALLS”.) In a public notice announcing, among other things, an expansion of the 2012 Measuring Broadband America Performance Study of Residential Broadband Service in the U.S., the Commission mentions NOITALS, pretty much in passing, without any fanfare at all. The Commission plans to use NOITALS to measure everybody’s Internet access speed, along with other parameters of Internet performance). 

How’s it going to do that? 

It seems that NOITALS enables the Commission to see what’s going on in each individual computer, nationwide, without the intervention of the computer’s user.

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Can Your Local Police Shut Down Cell Phone Service?

An FCC inquiry follows a transit authority’s deliberate disabling of passengers’ wireless phones.

The FCC has always been interested in preventing interruptions to telephone service. Usually it focuses on failures due to natural disasters, and plain old equipment breakdowns. But now it has a new concern: deliberate service stoppages implemented at the request of a state or local government. Yes, it sounds like something out of protests in the Middle East. But it happened at least once in the United States, and now the FCC is looking for policy guidance, hopefully before it happens again.

Last August, the folks who run the Bay Area Rapid Transit (BART) system in San Francisco/Oakland had word that protesters, objecting to BART police having shot and killed a man wielding a knife, planned to disrupt train service. (See a contemporaneous news account.) The protesters intended to use mobile devices, according to BART officials, to coordinate their activities and share information on the deployment of BART police. Fearing platform overcrowding and other unsafe conditions, and hoping to disrupt the disruptions, the BART people pulled the plug on underground cell phone service. (Protesters nonetheless managed to briefly shut down three stations.)

The BART system is something of a special case, in that BART itself owns the underground wireless network in its tunnels. Its actions consisted merely of turning off its own equipment.

Or maybe the matter is not that simple.

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FCC v. Fox: The Swami Tells It Like It Was, and Like It Will Be

On January 10, the Swami and the Blogmeister took a field trip to the Supreme Court to catch the Fox/ABC indecency argument. Here’s their report.

[Blogmeister note: Last year the Supreme Court agreed to consider the constitutionality of the FCC’s broadcast indecency policies in the context of two cases, one involving comments made during awards shows aired by Fox Television, the other involving an episode of NYPD Blue on ABC. Check our previous posts for more background. The argument before the Supremes was held on January 10. Kevin “the Swami” Goldberg and Blogmeister Harry Cole attended.]

Blogmeister:  I think we can agree that, from the perspective of a broadcaster, the argument was disappointing. After the Second Circuit’s sweeping endorsements of First Amendment rights for broadcasters in Fox and ABC, it was a let-down to hear the far more cautious tone of the Supreme Court Justices.

Swami: Disappointing – maybe. I also thought “demoralizing” at first – but on further reflection, I don’t think this is a lost cause by any means. 

Blogmeister: Interesting. But before we ask you to gaze into your crystal ball and come up with a prediction of the vote, how about your thoughts on the overall arguments? For instance, what happened to the FCC’s interest in protecting children’s innocent ears from the evils of vulgar words? Pacifica was based in large measure on precisely that interest, but there was virtually no discussion of that at all during the argument. Instead, the government harped repeatedly on the notion that broadcasters have been given the use of their spectrum for free by the government, and they have derived “billions and billions of dollars” from that spectrum.

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Kevin Goldberg: On the Journalism Beat

Here’s a reminder for all our readers. We here at FHH do more than FCC work. Our team has expertise in a variety of other communications areas, from corporate governance to lobbying to intellectual property to . . . journalism law. 

That last area, journalism, has been in the news recently, thanks to the case of Obsidian Finance Group, LLC v. Crystal Cox. That’s the case that triggered a lot of buzz when U.S. District Judge Marco Hernandez ruled that Montana-based blogger Crystal Cox is not a “journalist” for purposes of the Oregon shield law. (Ms. Cox was being sued for defamation after writing unpleasant things about an Oregon financial firm.) The Internets were outraged. How dare some judge say that bloggers aren’t journalists? Just another case of some old guy wishing for the days of yesteryear, right?

Just ask our own Kevin M. Goldberg, legal counsel to the American Society of News Editors (the nation’s largest trade association for editors of daily news publications). As Kevin writes on the ASNE’s website (we can’t keep all of Kevin’s good writing to ourselves), the judge’s ruling is (a) largely misunderstood and (b ) in many respects, correct. For that reason – and for reasons related to where Judge Hernandez gets it wrong – the ire about Judge Hernandez’s ruling is misplaced and certainly overblown . . . especially since the case probably will be consigned to the dustbin of history sooner rather than later.

You can read Kevin's analysis here.

Heading for a Showdown: Oral Argument Scheduled in FCC v. Fox

Mark your calendars, all you First Amendment buffs. The Supreme Court has scheduled the oral argument in FCC v. Fox Television Stations for Tuesday, January 10, 2012. (Do we need to remind any of our readers that the question before the Court in Fox is nothing less than the constitutionality of the FCC’s indecency policy?)  The Court’s calendar notation doesn’t specify a time, but the odds are the argument will crank up about 11:00 a.m. – although if you don’t get your place in line by 7:00 a.m. or so, there’s a good chance you won’t get in. Supreme Court arguments are open to the public, free of charge, but seating is limited and tends to fill up fast. For more information about attending the argument, check out the Court’s helpful and informative webpage.  As we did the last time the Supremes, the FCC and Fox got together for a free and frank exchange of views on the topic of broadcast indecency, CommLawBlog plans to have a team of observers at the argument. Check back here after the argument for reports from the front.

Indecency 2011: Third Circuit Sides With CBS, Again

In re-run of 2008 Janet Jackson decision, FCC extends its losing streak in court of appeals indecency cases

In a long-awaited if anticlimactic decision, a divided panel of the U.S. Court of Appeals for the Third Circuit has again sided with CBS in its seven-years-and-counting fight with the Commission over the 2004 Super Bowl® half-time show. For those of you with short memories, that was the show that featured Janet Jackson, Justin Timberlake and (for a spectacularly noteworthy appearance lasting 9/16 of a second), Ms. Jackson’s right breast, seen from a considerable distance.

While this most recent decision in CBS’s favor may be cheered by many (if not most) broadcasters, it is limited in scope. As a result, the impending Supreme Court show-down in the Fox Television case – already briefed, with an argument likely to be scheduled for early 2012 – remains the primary focus of attention among First Amendment aficionados.

But even so, the Janet Jackson case cannot be ignored. This was, after all, the situation that re-kindled the FCC’s interest in strict regulation of “indecency” on the airwaves.

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Reefer Madness III: Feds Looking to Bust Broadcasters?

She may just be blowing smoke, but one G-woman in California is making threatening noises about dope advertising.

We reported a couple of days ago on increasingly aggressive prosecutorial efforts being launched by Department of Justice officials in California against medical marijuana dispensaries and their landlords. We suggested that it wasn’t much of a stretch to figure that the Feds might eventually also target broadcasters who carry ads for such dispensaries.

Looks like our speculation wasn’t too far off. 

According to a post on the Center for Investigative Reporting website, at least one U.S. Attorney on the Left Coast has concluded that broadcast ads for grass are verboten. The post quotes Laura Duffy, U.S. Attorney for the region including San Diego County, as saying that “[n]ot only is [marijuana advertising] not appropriate . . . it’s against the law.” Ms. Duffy is looking at possibly sending out formal notices to TV, radio and print outlets giving them the formal heads up that they’re violating the law. She was understandably vague about what might happen after that, but did mention criminal prosecution as one possibility. This may not be a direct threat that the Feds are coming, but it’s pretty darned close.

So we’re now looking at the impending collision of two considerable forces: from one direction, we have the Great State of California (and others), satisfied that medical marijuana is a valid, beneficial and humanitarian therapeutic resource; from the other direction, we have the Federal government, still convinced that marijuana is the killer weed in which lurks murder, insanity and death.

And located right at the collision point of these two forces will be broadcasters and their print confrères, clutching the First Amendment.

This is a story that will likely be developing big time in coming weeks. But for now, the restraint we recommended last time around is still the order of the day. Check back here for updates.

The Swami: Looking At Violent Video Games Now, Seeing Indecency In The Future

Do the Supreme Court opinions in Brown v. Entertainment Merchants Association shed light on likely outcome of FCC v. Fox Television Stations indecency case next term? The Swami thinks so. 

When the Supreme Court agreed to hear a challenge to a California law regulating the sale or rental of violent video games to minors, many First Amendment types like myself asked why. A key issue was whether the Court would carve out a new exception to the First Amendment. And the Court accepted the case just one week after it decided United States v. Stevens, in which it emphatically declined to create such a new exception for videos that show cruelty to animals.   Why take another First Amendment case so soon? Perhaps the Court was signaling an intent to limit the Stevens decision to its particular facts (i.e., animal cruelty videos) by opening the door to regulation of violent video games marketed to human children. And if so, might the Court be opening the door to FCC regulation of violent programming?

After the decision in Brown v. Entertainment Merchants Association, it appears the Court knew exactly what it was doing. Brown struck down the video game law, relying on Stevens in refusing to create another new kind of unprotected speech, even as to minors. Broadcasters should be happy. The decision clearly implies that the FCC does NOT have the authority to regulate violent programming. The decision also leads me to conclude that, perhaps more importantly, the Court will side against the FCC in FCC v. Fox Television Stations,the indecency case it accepted on the same day Brown was decided.

The timing may be a coincidence; it was, after all, the last day of the Court’s term.   But I prefer to see an interconnected series of events that takes us from Stevens to Fox in just two moves, with Brown linking them together. Six Degrees of First Amendment law.

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First Amendment Face-off: Supremes To Consider Constitutionality of FCC Indecency Regime

Fox and NYPD Blue cases could provide last word in long-running debate

The Supreme Court has agreed to review the decisions of the U.S. Court of Appeals for the Second Circuit in the Fox Television and NYPD Blue cases. In a terse order issued the last day of the Court’s term, the Supremes said that it would consider only the following question:

Whether the Federal Communications Commission’s current indecency-enforcement regime violates the First or Fifth Amendment to the United States Constitution.

And with that the stage has been set for what could be the final battle in the decades-long struggle relative to the regulation of so-called “indecency” on broadcast stations.

The FCC rulings that will provide the focal point of the case involve two awards shows (in which first Cher, and then Nicole Richie, let loose with some supposedly unscripted expletives on live TV) and an episode of NYPD Blue which featured a brief – less than seven seconds, by our count – view of Charlotte Ross’s naked rear end (prompting the FCC to declare buttocks to be a sexual organ).

We have blogged repeatedly about the long-running indecency saga – click here and scroll down for a sampler – and the Supreme Court’s order provides little additional insight into what might be in store. (Interestingly, Justice Sotomayor did not participate in the decision to review the case; it’s not clear whether that means that she might recuse herself entirely from the case.) However, the Court’s express limitation of the case to the constitutionality of the FCC’s indecency policy does indicate that, unlike the last time this case was before the Court, we are in fact likely to get a determination of the constitutionality of that policy. And let’s not forget Justice Thomas’s separate opinion the last time Fox was before the Court – an opinion in which he suggested that, if the case came back, he might be inclined to look into the continuing validity of the Red Lion doctrine. (Red Lion is the 1969 Supreme Court decision in which the scarcity rationale was embraced by the Court as a justification for according broadcasters less than full First Amendment rights.)

The Court will now set up a briefing and argument schedule. Look for briefs to be submitted by the end of the summer or early fall, with an argument date following several weeks later. It’s reasonably likely that the argument will be held before the end of the year, although the Court might not issue its ruling until June, 2012. Check back here for updates.

[Blogmeister’s Note: Let’s not forget that, almost a year ago, our resident Swami Kevin Goldberg predicted that, if the Fox case were to go back up to the Supremes, Fox would win, by 6-3, or maybe 7-2, margin. We’ll be checking back with the Swami after the argument next fall to see if he’s sticking with that.]

More Trolls On A Roll

Four more decisions from U.S. District Judge Beryl Howell, thousands more disappointed "John Doe" defendants.  Welcome to Washington, DCT (District of Copyright Trolls)!

To paraphrase Chief Brody, they’re gonna need a bigger courtroom down at the U.S. District Court for the District of Columbia. That’s because Judge Beryl Howell has been at it again. As we reported last month, in March Judge Howell hung out the welcome sign in a big way for plaintiffs seeking to bring “John Doe” lawsuits alleging copyright infringements by 1,000+ unnamed defendants. And now she’s issued four more similar decisions in cases with as many as 5,000 defendants! (Check them out here, here, here and here.)

Welcome to D.C., your go-to spot for BitTorrent litigation. Troll out the red carpet!

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LPFM Cheerleader to FCC: Let Translators Originate

Amherst Alliance proposal would allow commercial operation on originating translators, demote non-originating translators to “auxiliary secondary” status

Back in January, just after the Local Community Radio Act of 2010 (LCRA) had been signed into law, we observed that there was still a long way to go before we could fully assess the impact of that Act on the low-power FM universe. After all, the Act imposed a number of new legal twists in the already long-running stand-off between FM translators and LPFM stations; it also gave rise to a welter of practical problems relating to the fate of thousands of translator applications still pending since 2003.   

Little did we know that things might get even more complicated. But a recent proposal from the Amherst Alliance could have just that effect.

The Amherst Alliance is a special interest group which was an early promoter of the concept of LPFM service. It has since been a “key player” (in the Alliance’s own words) in the debates that have shaped LPFM. And now the Alliance has filed a Petition for Rulemaking proposing to the Commission that translators be permitted to originate programming, including commercial programming. Oh yeah, and they also suggest a new hierarchical structure to be applied to the existing universe of secondary status FM operations, a universe currently populated by translators and LPFM’s. (FM boosters are also in that universe, but the Alliance doesn’t seem concerned about them.)

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Shut Up And Deal

FCC asks Supreme Court to review Second Circuit indecency decisions in Fox and NYPD Blue.

Like a hard-core poker player on a losing streak, the Commission isn’t going to let a recent string of defeats on the indecency front discourage it. Au contraire, the FCC’s going double-or-nothing, putting all its chips in and looking to Lady Luck for a change in fortune: it has asked the Supreme Court to review both of the Second Circuit’s 2010-2011 indecency decisions. But there’s no guarantee that the Commission will even be dealt a hand in the next round . . . and if it does get dealt in, the odds may be against the FCC in what could turn out to be a very high stakes game.

The two cases involve (1) Fox’s broadcasts of the 2002 and 2003 Billboard Music Awards and (2) an episode of ABC’s NYPD Blue. We’ll spare you the historical details here – you can read about them in our previous posts (like here and here). The U.S. Court of Appeals concluded in the Fox case that the FCC’s indecency policy, as it has evolved in recent years, is unconstitutionally vague and fails to give broadcasters a clear enough idea of precisely what types of material may or may not be deemed “indecent”. In the NYPD Blue case the same court held that its Fox ruling applied equally not only to language (which had been at issue in Fox) but also to visual images.

The one-two punch delivered by the Second Circuit effectively scuttled the FCC’s efforts to enforce its quasi-ban on indecency.

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Snyder v. Phelps: The Swami Breaks It Down

Swami G puts up another W

[Blogmeister’s Note: The Swami strikes again. Last November, our resident appellate oracle, Kevin Goldberg (a/k/a The Swami) predicted that the Supreme Court would side with the Westboro Baptist Church in the First Amendment face-off that was Snyder v. Phelps. (Disclosure: Swami G signed an amicus brief in the case on behalf of the American Society of News Editors.) And sure enough, in March that prognostication proved to be right on the money, as the Supremes held their noses and voted for Westboro, 8-1. Of course, the Swami had called it closer (5-4, maybe 6-3), but what the heck – he beat the spread, didn’t he? While no explanation is really necessary here, Kevin wants his loyal readers to understand (in the words of Mike LaFontaine), wha’ happened?]

As a top prognosticator, I’m used to getting it all the way right. So I was somewhat humbled when my prediction in Snyder v. Phelps was off by a couple of votes. Oh sure, I had the result right, but I misread three Justices – Kennedy, Thomas and, most blatantly, Chief Justice Roberts. (About Roberts, there was “no question in my mind” that he would be voting for Snyder. Oops.)

What went wrong? In retrospect, I probably got caught up in the inflammatory facts of the case. (You can read more about the background and facts in my prediction post). Maybe I was distracted by one of the most striking combinations of “compelling plaintiff” (Snyder, a grieving father of a slain U.S. Marine) and “deplorable defendant” (Westboro, a church that protests at funerals with obnoxious signs proclaiming, e.g., “God Hates Fags”) that I’ve ever seen. If sympathy can ever trump the First Amendment, this would be the case, and from their questions at oral argument and previous opinions, Kennedy, Thomas and Roberts were the most likely to succumb to that temptation. 

Or so I thought.

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Trolls On A Roll

With decision from D.C. judge, copyright trolls may have found a new go-to jurisdiction

Score one for the trolls . . . the copyright trolls, that is. A recent preliminary decision by U.S. District Judge Beryl Howell may lead those trolls to funnel much if not most of their litigation through the U.S. District Court in Washington, D.C. Judge Howell’s decision will almost certainly make it easier for the trolls to pressure their defendants – including even purely blameless defendants – into pre-trial settlements favorable to the trolls.

Disclosure: I know Judge Howell. It’s not like we’re friends or anything, but I did meet her when she was working on FOIA legislation with the Senate Judiciary Committee. She’s extremely smart, well-intentioned and easy to work with. 

But as the newest addition to the U.S. District Court in DC, she has certainly not endeared herself to those interested in First Amendment rights – which clearly includes me – with her recent ruling in Call of the Wild Movie, LLC, v. Does 1-1,062.

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White House On Copyright: PRA, Yes! Illegal Streaming, No!

Administration white paper urges creation of performance right for broadcast of sound recordings

Last June, the White House officer charged with protecting “the ideas and creativity of the American public” – that would be the U.S Intellectual Property Enforcement Coordinator – issued a Strategic Plan on the enforcement of Intellectual Property. Prepared in coordination with a wide range of Federal agencies, the Strategic Plan examined existing laws to identify (among other things) “deficiencies that could hinder enforcement” of intellectual property (IP) rights. Following up on that initial effort, the White House has now issued the Administration's White Paper on Intellectual Property Enforcement Legislative Recommendations (White Paper), in which it offers suggestions for legislation to beef up IP enforcement.

Much of the 20-page report – which addresses such esoteric as corporate espionage, drug counterfeiting and criminal sentencing standards – is probably of limited direct interest to our readers. But two items in the White Paper do warrant attention here.

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Indecency Complaint, With A Spanish Accent

Además el cambio ca, además de que es lo mismo.

Five years ago I was quoted in an article in Billboard about whether Spanish-language broadcasters get a pass when it comes to enforcement of the FCC’s indecency rules. Several English-language broadcasters – including Howard Stern (who quoted me on the air) – have frequently complained that the FCC does not enforce the rules equally.  Suspected reasons for the disparity: fewer complaints get filed against Spanish language programs, and the Spanish-speaking staff at the FCC has traditionally been undermanned. 

Now a couple of groups are looking to change the first of those possible reasons.

The National Hispanic Media Coalition (NHMC) and the Gay & Lesbian Alliance Against Defamation (GLAAD) have filed a complaint (173 pages in all, including extensive attachments) with the FCC against a TV station in the Los Angeles area. The focus of their complaint: the Spanish-language television talk show “José Luis Sin Censura” (translation: “José Luis Uncensored”).

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Swami Reigns Supreme, Reins Supremes

(Blogmeister's Note: Boo-yah!!! The Swami puts his prediction out there on February 27, and the Supreme Court follows through two days later. Is this guy good or what? As our ace prognosticator predicted, the Supreme Court has rejected in no uncertain terms AT&T’s claim that corporations have personal privacy rights for purpose of FOIA Exemption 7(c).)

OK, so I predicted that the FCC would win AT&T v. FCC in a walk and, when the decision comes down, it’s the Commission in a slam dunk. (OK, I predicted the vote would be 7-1, and it came in 8-0. Nobody’s perfect.) I’ll spare you the facts, since they can be found in my earlier post. Instead, I’ll simply let you know a little more about Chief Justice Roberts’ opinion for the Court.

As I correctly foresaw, the Court was most moved by plain statutory language, although it turned out to be more an exercise in grammar than straight-up definitions.

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FOIA Consideration: Is A Corporation Entitled To "Personal Privacy"?

The Swami’s back with more vaticinations and haruspications

[Blogmeister’s Note:  We welcome back our resident odds-making courtside observer, Kevin Goldberg, a/k/a the Swami, who tells it like it is and how his crystal ball thinks it will be.  This time out the Swami reports on a FOIA face-off in the Supreme Court between the FCC and AT&T in January.  With Sunshine Week – the national celebration of open government – just around the corner, Kevin thought this would be a good time to reveal his prediction.  Spoiler alert: the Swami’s liking the FCC in this one.]

Are corporations people? Are they entitled to “personal privacy”? Those were some of the questions thrashed out in oral argument before the Supreme Court last month, in a case in which the FCC happened to be one of the parties. I was there on behalf of our client, the American Society of News Editors (ASNE), which had joined with several other media organizations in an amicus brief in the case, but given the issues in the case, you really had to wonder why any of us – including the parties and the Court itself – were there at all.

The case is FCC v. AT&T, Inc. It started back in 2004, when the FCC opened an investigation into whether AT&T had violated the FCC’s E-Rate program. It collected various documents from AT&T, some of which apparently went beyond unflattering into downright embarrassing.   The matter was eventually settled, with AT&T paying a fine. 

CompTel, an association of communications service providers and their supplier partners (including some AT&T competitors), wasn’t satisfied.

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NYPD (Not Too) Blue Moon

Second Circuit tosses FCC fine against ABC stations for bathroom scene featuring Charlotte Ross's buttocks

The U.S. Court of Appeals for the Second Circuit has handed the FCC another set-back on the indecency front. A unanimous panel of the Court has issued a Summary Order vacating the $1.2 million in fines that the Commission sought to impose on ABC and its affiliates for a 2003 episode of NYPD Blue. According to the Court, the FCC effectively conceded away its case.

As indecency cognoscenti will recall, the FCC got its knickers all in a twist about the show’s opening scene, which featured the comely Charlotte Ross disrobing in a bathroom as she prepared to shower. The scene included shots of Ms. Ross’s buttocks for slightly less than seven seconds, total. But that was enough for the FCC, which determined that the “lingering shot” of her derriere was “shocking, pandering and titillating”. (The Commission was not, however, similarly disturbed by the fleeting image of the side of one of her breasts.) The penalty? A $27,500 fine against each of 44 ABC affiliated stations.

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Snyder v. Phelps: The Swami Makes The Call

Our First Amendment guru’s take on a tough case

[Blogmeister’s Note: The Supreme Court has started issuing its opinions for the 2011 Term, so it’s time to let the Prognosticating Swami, Kevin Goldberg, crank up his haruspication and vaticination machine to let our readers know what they might expect from the Court. First case out of the box: Snyder v. Phelps, one of the thorniest First Amendment cases to come down the pike in a while. The Swami sat in on the Court’s oral argument in October. Here’s his take. Full Disclosure Alert: Kevin, representing the American Society of News Editors, signed onto an amicus brief in support of Phelps (or, more accurately, in support of the First Amendment rights at stake).]

This case is a poster child for the notion that the First Amendment exists primarily to protect the fringe elements of society. Rarely has the Swami’s crystal ball been so muddied after attending an oral argument at the Supreme Court. But equally rare is a case like Snyder v. Phelps.

Few cases in recent years have generated the attention of this one. The day of the argument, protesters supporting both sides were outside the Court, a huge amount of media were lined up more than an hour before the argument started, and I’m told that people had begun lining up to get into the Supreme Court chambers as early as 5:00 a.m. for a 10:00 a.m. argument – including even lawyers seeking to get into the section reserved for Supreme Court bar members.

Before we get too far ahead of ourselves, though, let’s look at the facts of the case.

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Beware The Copyright Troll

Aggressive litigants may pose problems for the careless and unwary

There’s a new monster on the prowl, and you or your business could be its next victim. Don’t bother looking over your shoulder, because you won’t see it coming. The first you’ll know about it will be when the threatening letter arrives, or perhaps the notice of the Federal lawsuit, or the subpoena. 

And at that point, it may be too late.

We’re talking about the Copyright Troll, a recent unfortunate phenomenon of the Internet Age identified several years ago and recently brought into clear focus through the vigilant efforts of the Electronic Frontier Foundation (EFF), in particular, as well as other protectors of our civil liberties.

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Qualifying "Qualified Entity"

FCC finally sets eligibility guidelines for set-aside Sirius/XM channels

Look for diversity to start raining down from the skies. The FCC has finally filled in the details for implementation of the Sirius/XM set-asides which were initially approved, in non-detailed terms, more than two years ago. Those new rules are set to be implemented by April 17, 2011.

But the diversity we’ll be seeing may be different from the diversity that some folks might have expected.

Back in 2008, the FCC decided to let XM and Sirius merge. In response to objections that maybe, just maybe, reducing the number of satellite radio services from two to one might reduce competition and diversity, XM and Sirius took a bold step: they made a number of “voluntary” commitments aimed at defusing those objections. (We put “voluntary” in quotes here because the Commission’s 2008 order granting the merger made clear that, without those commitments, the merger would not have been approved.) One of those commitments involved setting aside 4% of the capacity on each of the Sirius and XM platforms for long-term leases for noncommercial educational (NCE) programming and programming by one or more “Qualified Entities”.

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Fox v. FCC: FCC Concentrates And Asks Again

Take "no" for an answer?  No way!  FCC seeks rehearing at Second Circuit.  (Supremes will just have to wait.)

As we reported last month, the U.S. Court of Appeals for the Second Circuit overturned the FCC’s indecency enforcement regime as unconstitutional. That left the FCC with only three options if it wanted to fight to defend its indecency regime. It could either: (1) go back to the three judges who rejected the policy, trying to convince them that they got it wrong; or (2) ask the entire en banc Second Circuit (which includes ten active-service judges) to reverse the three-judge panel’s decision; or (3) go for broke and ask the U.S. Supreme Court to review the case. (Obviously, abandoning the indecency regime was also a fourth option, albeit not one the FCC was likely to embrace).

Late in August, the FCC made up its mind: it’s going for Options (1) and (2), leaving for another day (and maybe another case) the possibility of Supreme Court review of indecency enforcement.

According to the FCC’s petition for rehearing, the Second Circuit panel’s Fox decision went too far in overturning the entire indecency enforcement regime. The Commission asserts that the panel’s conclusion – that the FCC’s overall indecency policy is unconstitutionally vague – is inconsistent with earlier decisions by the Supreme Court, the D.C. Circuit, and even the Second Circuit itself. The Commission argues that the Fox decision rejects the “contextual approach” to indecency analysis the FCC has used in the past – and that, by so doing, leaves the Commission with no way to enforce the federal laws prohibiting indecent broadcasts.

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Swami, How I Love Ya, How I Love Ya . . .

[Blogmeister’s Note: A recent post alluded to our crack First Amendment guru and Supreme Court Observer, Kevin Goldberg, and his assessment of the likely vote should the Second Circuit’s Fox decision return to the Supremes. In response to a surge of reader interest in his prognostications, we have asked The Man to give us a look-see into Kevin’s Krystal Ball. Kevin has asked that we note for the record that he: (a) accurately predicted the result in the original Fox v. FCC decision in the Supreme Court (well, sort of accurately – he mixed up the votes of Souter and Kennedy) and (b) has correctly picked the winner of the last three World Cup finals. So he seems to feel that he’s on a bit of a roll . . .]

I see the Supreme Court affirming the Second Circuit – and, thus, tossing out the FCC’s indecency policy – by 7-2, or maybe 6-3.   Here’s my thinking.

Let’s start with the Court’s recent decision in United States v. Stevens.  There the court voted 8-1 not to carve out new exceptions to the First Amendment in order to criminalize the production or sale of videos depicting animal cruelty.  Sure, trafficking in animal cruelty videos isn’t the equivalent of broadcasting indecent speech. But Stevens sheds light on (a) the degree of unpleasant (or even outright disgusting) speech each Justice is willing to tolerate and (b) the level of vagueness he or she will or will not tolerate in a law or regulation. Throw in several statements made during the oral arguments the first time the Fox case rolled through the Supreme Court (it was argued on Election Day 2008), and we can get some sense of how each Justice might vote on the constitutional issue.

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Indecency In A Post-Fox World: What's Up Next?

Whither the Commission, and the rest of us, from here?

Now that the initial hoopla attendant to the release of the Second Circuit’s Fox decision has quieted down, let’s take a gander at legal scenarios that might be in store for us.

Most obviously is the prospect of further efforts by the FCC to convince some court, any court, that the Second Circuit panel’s decision was wrong.   The options available to the Commission are:

Petition for rehearing to the Second Circuit panel. This would require the FCC to convince at least two of the panel’s three judges that the decision they just made was wrong. Good luck with that.

Petition for rehearing en banc to the full Second Circuit. This would require the FCC to convince at least six of the ten active judges sitting on the Second Circuit that the whole court should take a look at the panel’s decision. According to the Federal Rules of Appellate Procedure, en banc rehearings are generally “not favored” and “ordinarily will not be ordered”. So good luck with that, too.

Petition for writ of certiorari to the U.S. Supreme Court. This is the classic “taking it to the next level”, and is probably the best appellate option the FCC has. But the Supremes are under no obligation to review the case; in fact, the odds are that they won’t agree to review any case (in the term ending in June, 2009, the Court reportedly denied 98.9% of the cert petitions filed). Still, the Court heard the Fox case back in 2009, so the Supremes obviously have some interest in it. If the FCC wants to keep the ball alive on the judicial side, Supreme Court review is likely its best bet.

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Second Circuit Flushes FCC Indecency Policy

Fox wins third round in long-running slug-fest; next stop – the Supreme Court?

In a huge win for broadcasters and First Amendment-loving citizens, the U.S. Court of Appeals for the Second Circuit has struck down the FCC’s indecency policy.  According to the Court, that policy violates the First Amendment because it is unconstitutionally vague and creates a “chilling effect” on constitutionally protected free speech. Importantly, the Court’s decision extends beyond the “fleeting expletives” aspect of indecency regulation (which was the original focus of the case) and, instead, strikes down the FCC’s fundamental policy on indecency.

The Second Circuit issued its opinion in Fox v. FCC, about which we have written before (check here and here and here, for examples). The case involves comments made in front of an open mike by (a) Cher (“fuck ’em”) and (b) Nicole Richie (“Have you ever tried to get cow shit out of a Prada purse?  It’s not so fucking simple.”). 

The FCC initially held that those comments, which were broadcast by Fox, were indecent. Fox appealed to the Second Circuit and, in 2007, the Circuit overturned the FCC’s policy on technical, administrative law grounds. As the Second Circuit saw it, the supposedly indecent remarks were “fleeting expletives”, the kind of incidental, extemporaneous exclamations that the FCC had historically not penalized. While that hands-off policy had changed with the 2004 Bono/Golden Globes decision (involving a broadcast in which Bono, upon receiving an award, famously exclaimed, “This is really, really, fucking brilliant” ), in its first whack at the Fox case in 2007 the Second Circuit determined that the FCC had not adequately explained the shift in its treatment of “fleeting expletives”.

In 2009 the U.S. Supreme Court reversed that narrow decision, holding that the FCC’s explanation was just fine, thank you. The Supremes shipped the case back down to the Second Circuit for another look. The Second Circuit’s initial opinion had included an extended, non-decisional discussion of constitutional issues – a discussion which unmistakably indicated that the Circuit felt the FCC’s policy to be unconstitutional. As a result, many – possibly most – observers figured that the Second Circuit would use this second bite at the apple to reach the constitutional issue for real.

The Second Circuit did not disappoint.

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Thar She Blows!

Enforcement Bureau sets out on an indecency fishing expedition, or a wild goose chase – or, perhaps more accurately, a Fox hunt.

Grab your rod, bait your hook, put on your floaties – and don’t forget the sunscreen – it looks like we’re all going on a fishing expedition, thanks to the FCC’s Enforcement Bureau!

Apparently determined to make the already murky area of indecency regulation even murkier, the Bureau has: (a) issued a Notice of Apparent Liability, to the tune of $25,000, to Fox because Fox’s response to a Bureau inquiry was not, in the Bureau’s eyes, responsive enough; and (b) issued more than 200 more letters of inquiry, addressed to all Fox affiliates. With that many hooks in the water, the FCC is obviously hoping to land a couple of big ones.

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Cable Programming Exclusivity Ban Survives Appeal . . . But For How Long?

Split D.C. Circuit panel sidesteps First Amendment argument, upholds FCC prohibition . . . THIS time

The U.S. Court of Appeals for the D.C. Circuit has affirmed the 2007 extension of the Commission’s prohibition against exclusivity arrangements between cable operators and cable-affiliated programming networks. But the likelihood of that prohibition staying on the shelves beyond its current sell-by date (i.e., 2012) is dubious.

For more than 15 years the FCC has prohibited exclusive contracts between cable operators and cable-affiliated programming networks. The prohibition was triggered by the Cable Act of 1992, which reflected Congressional concern about cable’s monopolistic position in the realm of multichannel video programming distributors (MVPDs). But Congress was not inclined to let the FCC engrave the prohibition in stone. Au contraire, Congress included a sunset provision essentially causing the ban to go away automatically in 10 years unless the FCC made an affirmative finding that the prohibition continued to be necessary to protect competition and diversity. In 2002 the Commission made such a finding, leaving the prohibition on the books for another five years. And in 2007, when that extension ran out, the Commission renewed it for another five years.

That’s when Cablevision and Comcast, two of the biggest MVPDs, asked the Circuit to review the ban. In their view, the increasingly competitive MVPD market – now populated by such nouveaux arrivés as satellite TV providers DirecTV and Dish, not to mention telephone companies using their networks to deliver more than phone service – undercut the concerns that gave rise to the ban back in the days of the first President Bush.

By a 2-1 decision, the Circuit panel upheld the FCC. But in so doing, it gave the cable petitioners reason to believe that the prohibition won’t be around a whole lot longer.

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The FCC Wants To Know Everything About Everything

“Future Of Media project”to examine the, um, future of media

The FCC has launched an “examination of the future of media and information needs of communities in a digital age”. The scope of the inquiry seems to be Everything-Anybody-Could-Possibly-Know-And-Then-Some, although speculation, surmise and other elements arguably falling short of “knowledge” or “fact” will apparently also be welcome. You have until March 8 to get your thoughts together and ship them to the FCC.

The Commission in turn has promised that it will “produce a report”. Presumably, that report will be based on comments submitted in response to the FCC’s inquiry, but the FCC stops short of any absolute commitment along those lines.

 A friend of mine once asked an acquaintance exactly what that person’s communications consulting business consisted of. The answer: “I write reports”. We have laughed about that ever since because we can’t figure out who would pay for such a service.

But it’s no laughing matter when the FCC sets out to write, perhaps with unrealistic ambitions, a report about staggeringly broad and unfocused topics. The Commission claims that the report will “provid[e] a clear, precise assessment of the current media landscape” and that its preparers – the largely unidentified “Future of Media project” (FOMp) – will “analyze policy options and, as appropriate, make policy recommendations to the FCC, other government entities, and other parties”.  

One thing is incredibly clear:  the report, and the FOMp as a whole, will necessarily implicate the possibility of government regulation of news and other content. To illustrate, an early contribution to the FOMp conversation – delivered by a post to the FOMp blog (http://reboot.fcc.gov/futureofmedia/blog) on January 25 – expresses concerns about the Supreme Court’s decision in the Citizens United case. It observes that, while that decision is likely to increase broadcasters’ revenues, that may not mean any improvement in broadcast journalism, since the commenter’s concept of good journalism may not be “the kind of journalism the market would support”. By contrast, another commenter (in a post dated January 27) suggests that “consumers of journalism” should be encouraged to “make appropriate financial contributions” to journalists, journalistic organizations or other producers of “work” which the consumers deem “valuable”. (The FOMp blog header, presumably written by someone on the inside of the FOMp, refers to that as “good content”.)

At this point, your robot should be dancing around, eyes aglow, arms flailing, screaming “Danger, Will Robinson! Danger!”

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"Fleeting Expletives": Second Circuit, Second Time Around

Constitutional challenge to the FCC’s indecency policy is center stage in Fox’s second trip to appeals court, judges appear unsympathetic to FCC arguments

If at first you don’t succeed, try, try again. And so it was that the FCC trudged back into the U.S. Court of Appeals for the Second Circuit on January 13 to defend the “fleeting expletives” portion of its indecency regime one more time. When last the Commission fought this particular fight in this particular arena, things didn’t go so well for the agency. From what we saw, the Commission is not likely to fare any better this time around. 

Back in 2006, in the wake of Janet Jackson’s Super Bowl flash, the Commission determined that fleeting uses of “fuck” and “shit” in two live awards shows aired by Fox in 2002 and 2003 violated the prohibition on indecent broadcasts. Fox appealed the decision to the Second Circuit, which overturned the FCC on non-constitutional grounds. According to the court, the FCC failed to explain why it had chosen to abandon a longstanding policy of not penalizing the occasional “fleeting” use of expletives. As we reported here last April, the Supreme Court, having agreed to hear the FCC’s appeal of the Second Circuit ruling, reversed the Second Circuit and shipped the case back down for further consideration.

While the FCC may have been pleased to have won a temporary reprieve from the Supremes, any Commission elation must have been tempered by the grim reality that it was about to jump out of the frying pan and into the fire.

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Ban On "Electioneering Communications" Tossed By Supreme Court

Court affirms right of corporations, unions, to advertise in support of or in opposition to political candidates

The U.S. Supreme Court has struck down a long-standing ban on corporate spending on political advertising, as well as a related portion of the McCain-Feingold campaign finance reform act that prohibited “electioneering communications” by corporations and unions in the days leading up to an election. This is welcome news to broadcasters and others in the media business as the decision is widely predicted to introduce a new pool of buyers of political advertising time.

The case (which we previously described here and here) arose, oddly enough, from a documentary movie about Hillary Clinton. The film, released in the thick of Ms. Clinton’s 2008 run for the presidential nomination, was – how can we say this delicately? – brutally critical of Ms. Clinton. Its producers wanted to broadcast ads for the film, but were concerned such ads might be deemed “electioneering communications” and, therefore, might violate the law. Accordingly, they took the matter to court, and the rest is now history.

The Supreme Court’s decision, which affirms the First Amendment rights of corporations and unions, involves (among other political advertising laws) the McCain-Feingold Act, more properly referred to as the Bipartisan Campaign Reform Act of 2002 or “BCRA”. In relevant part, BCRA prohibited “electioneering communications” by corporations and labor unions. Specifically, BCRA barred such entities from directly spending money on broadcast, cable or satellite communications that (a) referred to clearly identified candidates within 60 days of a general election or 30 days of primary election and (b) reached 50,000 or more persons. The Court found that that restriction (and earlier cases upholding bans on corporate political speech) amounted to unconstitutional censorship based solely on the identity of the speaker. 

Although the Court’s decision greatly expands the free speech rights of corporations, it does not lift all restrictions on political advertising. Corporations are still prohibited from making contributions directly to the campaigns of political candidates (although Political Action Committees, or “PACs”, may still do so). Moreover, the Court specifically upheld BCRA’s disclaimer and disclosure requirements (the spoken and textual announcements of who is responsible for an ad and whether it was authorized by any candidate). Also untouched by the decision are BCRA’s “stand by your ad” announcement and certification requirements that federal candidates must meet to qualify for lowest unit rates.

Nevertheless, for broadcasters facing a down advertising market, the positive effect of the Court’s decision may be considerable. Corporations and labor unions are now permitted to spend money directly from their treasuries on ads that support or oppose political candidates and ballot issues. This greatly expands the market for the upcoming mid-term election season and brings in players with even deeper pockets than PACs and candidate committees. A complete copy of the 183-page decision (with various concurring and dissenting opinions) can be found here (the official Supreme Court site, where access to the opinion was intermittent within a day of its release, possibly because of high demand) or here (the www.scotuswiki.com site).

Power To The Parents Re-redux

Comment deadlines set in “parental empowerment” inquiry

Last month we reported on the FCC’s Notice of Inquiry into parental empowerment. That notice has now made it into the Federal Register, which in turn establishes the comment and reply comment deadlines. If you’re moved for whatever reason to chime in on any or all of the questions posed in the notice – sample question: Is there “a minimum level of media literacy that parents, teachers, and children must have to ensure that children can participate effectively in modern society and enjoy the benefits of electronic media while avoiding the potential harms” – you have until January 25, 2010. Reply comments are due on February 22, 2010.

"That's Right, You're Not From Texas"

Unlicensed operator rejects FCC authority, FCC rejects unlicensed operator’s rejection

They think big in Texas, and they think independent in Texas, and so it should be no surprise that an FM radio operator was not impressed when the Feds arrived at his doorstep. Some FCC agents claimed that the operator – one Raymond Frank – was lacking some piece of paper or other from some agency Back East in Washington, but Mr. Frank knew better. No “pirate broadcaster” he – no, he was operating strictly within the boundaries of the Republic of Texas, and so was not subject to the laws of the Yoo-nited States or any little ol’ FCC. (Frank also argued that the FCC’s rules violate the First Amendment. But if Frank was not a U.S. Citizen – being as how he claimed Republic of Texas citizenship and all – that argument may have been a tad inconsistent, but we digress.)

Not surprisingly, the Dallas office of the FCC’s Enforcement Bureau didn’t see things that way, and whupped Mr. Frank but good with a $10,000 fine for unauthorized operation.

The most interesting aspect of the Bureau’s Forfeiture Order is the fact that the Bureau felt the need to respond, in detail, to Frank’s claim that the FCC lacks jurisdiction over radio operations in Texas. To quote the Bureau:

We also note that Texas is a “State” of the United States of America, and it and its residents are subject to the laws of the United States. According to the to the [sic] Texas Historical Commission, Texas was annexed to the United States as the 28th state on December 29, 1845; Texas seceded from the United States and joined the Confederate States of America on January 28, 1861; and Texas officially was readmitted to the Union on March 30, 1870, following the period of Reconstruction. See http://www.thc.state.tx.us/triviafun/trvgov.shtml. Because Texas is a State, Mr. Frank’s invocation of the Foreign Sovereign Immunities Act is misplaced.

Presumably the Bureau felt that, by relying for this historical review on the “Fun Facts” page of the Texas Historical Commission website, the Bureau could not be accused of any kind of Yankee Revisionism. Yee haw.

Power To The Parents Redux

Trouble in River City?

If you’re looking for a good example of your tax dollars being spent – spent, yes, but not necessarily being put to work – you should check out the Notice of Inquiry (NOI) issued by the Commission on October 23. Entitled “Empowering Parents and Protecting Children in an Evolving Media Landscape”, it reads like a cross between an undergraduate course in child psychology and a weekend program on “modern parenting” that might be offered at the local community center. 

While no one can fault the Good Intentions presumably underlying the NOI – after all, Looking Out For The Kids ranks right up there with apple pie, the flag and motherhood in the pantheon of unassailable motivations – the NOI is grossly flawed in numerous ways. It lacks legislative authority, raises the specter of unconstitutionality, largely duplicates an inquiry just completed by the Commission, inserts the FCC into a regulatory area which other, presumably better suited, agencies are already working, and asks questions which are unanswerable.

If this is how the Genachowski Commission plans to deploy its resources, we’d all better fasten our seatbelts – it could be a bumpy night.

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Dogfight In The Supreme Court

The Goldberg line: Kevin foresees a 7-2 (or better) decision declaring the “crush video” law unconstitutional

Two days into its 2009-2010 term, the Supreme Court sank its teeth into a case which could have a profound impact on all First Amendment free speech rights, and particularly those of the news media. In United States v. Stevens the Court will have to consider whether a whole class of speech – in this case, depictions of “animal cruelty” intended to be distributed for commercial gain – can be declared “unprotected”, i.e., not subject to First Amendment protection.

The focus of the case is 18 U.S.C. Section 48, a 1999 Federal criminal law. It provides for up to five years in prison for anyone who “knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain.” 

The law defines a depiction of animal cruelty as “any visual or auditory depiction of a living animal being intentionally wounded, maimed, mutilated, tortured, or killed if such conduct is illegal either under federal law or in the state or locality where the possession, creation or sale of the material takes place.”  Depictions that have “serious religious, political, scientific, educational, journalistic, historical, or artistic value” are excepted from the statute’s reach. (Of course, traditional First Amendment jurisprudence requires that the value of a work as whole be considered, not just particular images which a prosecutor might find offending within the overall work.)

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"Net Neutrality = the First Amendment of the Internet"? Not Really

A good slogan perhaps, but NOT the law

As the FCC prepares to impose its version of net neutrality upon wireless and wired Internet service providers (ISPs), the Internet is buzzing with comments on how such governmental intervention may affect the future development of the Internet. 

On the one hand are the application service providers (with Google leading the charge) who promote net neutrality as necessary for the preservation of the Internet. These folks did not invest in any of the transmission facilities that comprise the hardware pipeline of the Internet – but they are happy to rely on that pipeline to distribute their services.

On the other side are the ISPs (including folks who DID invest in the hardware) and technical experts who believe net neutrality is a solution in search of a problem and a dangerous overlay of regulation upon a dynamic, constantly evolving set of relationships.

This battle presents a range of legal issues. The question mentioned perhaps most often involves the FCC’s authority to regulate at all here:  the Commission (with a thumbs-up from the Supreme Court in the Brand X case) has held Internet data transmission to be an “information service” that cannot be regulated – well, at least not as common carriage. But if that’s the case, how can the Commission now try to impose common carrier-like obligations on ISPs?

Then there is the First Amendment of the U.S. Constitution.

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Meanwhile, Back At The Second Circuit . . .

Briefing schedules set for indecency remands

As we all know, last April the Supreme Court affirmed the FCC’s re-cast indecency policy on APA grounds, and sent the matter back down to the Second Circuit for further consideration. For those of you who have lost track of the case amid various summer distractions, here’s a heads up: the Second Circuit has established a briefing schedule for the remand phase. 

Fox’s brief is due September 16, along with any amici briefs supporting Fox’s position. The FCC and its friends are set to file their responsive briefs on October 28, and Fox et al. will have until November 12 to file their replies. The Court has apparently decided to hold additional oral arguments at some point after it has had a chance to review the briefs, but it won’t be announcing a schedule for the arguments until after all the paperwork has been filed. Even if the current briefing schedule doesn’t get extended for any reason (and there are never any guarantees), it’s clear that the Court won’t likely be issuing any new opinions in the case until mid-2010, at the earliest – if you figure that arguments won’t likely happen until the middle of the first quarter of 2010 (again, at the earliest) and then the Circuit takes a few months to crank out its decision.

With that schedule, the parties would not likely be asking the Supremes to take another look at it until the latter part of 2010, which in turn means that we’re not likely to see a second Supreme Court take on the matter until 2011 or later.

Meanwhile, in Philadelphia, the Third Circuit folks got a slight jump on their Second Circuit colleagues by calling for briefs in the CBS case (involving L’Affaire Janet Jackson) starting earlier this month, with the last round of reply briefs currently due toward the end of September. No word yet about plans for oral argument. While the Third Circuit’s six-week head start over the Second may result in the CBS case getting to the Supremes’ door step before the Fox case does, we’re still probably looking at 2011 as the earliest before we’ll be seeing another Supreme Court decision on the merits of the FCC’s indecency policy.

Impaired Transparency?

Where’s the FCC’s copy of the MusicFIRST Request been hiding?

As we reported recently, the FCC has invited comment on the Request for Declaratory Ruling filed by the MusicFIRST Coalition. For the convenience of our readers, we provided a link to a copy of the Request. Good thing that we did. Apparently the FCC has been having quite a time trying to track down any copy in its files reflecting a “received” stamp from the Secretary’s office. 

As an apparent result, as of 5:00 p.m. today (August 12, 2009) no copy at all of the Request had been posted in Docket No. 09-143 on ECFS, even though the public notice inviting comments was supposedly released five days ago – so anybody who (a) might have wanted to read the Request between then and now and (b) hasn’t thought to look for it on CommLawBlog.com would have had a bear of a time finding it. 

We’ve heard from one source who suggested that it’s not clear that the Request ever made it to the Secretary’s office. To be sure, the copy of the Request that we have in hand (no thanks to the FCC) includes a certificate of service indicating that it was being filed at the appropriate FCC filing address – but ordinarily, when things are filed at that address, stamped copies are made and retained by the Commission for future reference. So if it did pass through the Secretary’s office, it’s unclear why it didn’t get stamped in . . . and if it did get stamped in, it’s unclear why it’s taking so long to get a stamped copy posted for public review.

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Responding To A False Alarm?

FCC invites comments on alleged improprieties in Performance Rights Act debate

A new front has been opened in the on-going struggle over the Performance Rights Act (PRA). The new battleground is the FCC, which has invited comment on a “Request for Declaratory Ruling” filed by MusicFIRST Coalition back in June.

As we have previously reported (here and here, for example), the PRA would require radio stations to pay for the on-air performance of copyrighted sound recordings. That would be over and above the royalties broadcasters already pay to the composers of the underlying works (through ASCAP, BMI and SESAC). Historically, of course, radio has provided on-air exposure to recording artists for free, just as the artists have made their recordings available to broadcasters for free. That quid pro quo arrangement has served everybody – artists, broadcasters and the listening public – well for decades. The artists – well, at least some of the artists, and certainly the record companies for which they work – now want to change the deal.

Whether the proposed change makes much sense is a matter of considerable (to put it mildly) debate. (See our colleague Peter Tannenwald’s post here for an interesting take on the situation.) But thus far, the debate has been thrashed out in Congress, in connection with various bills which would either impose a new performance rights royalty obligation or not. (While no final votes have been taken, some observers – including our colleague Kevin Goldberg – have concluded that the PRA is doomed to failure in this Congress.)

Perhaps sensing a need to expand the battlefield, MusicFIRST – a “partnership of artists and organizations in the music community who support compensating performers for their work when it's played over the air” – has tried to lure the FCC into the fray. 

And the FCC has taken the bait.

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The Lazy Man's Guide to the Sotomayor Nomination

We could do an analysis of Supreme Court nominee Sonia Sotomayor's past opinions and read the tea leaves as to how her appointment to the Court will affect broadcasters, newspapers, media and other First Amendment concerns. 

But there's enough out there already for us to say:  just check out the links below and amuse yourselves for a while. Note that Judge Sotomayor hasn't heard many cases on appeal from the FCC -- or even Administrative Law cases which might demonstrate how she would eventually rule in an FCC-originated case.

But there's still plenty to interest broadcasters and other media:

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Supremes Send CBS/Janet Jackson Back To Third Circuit

In a decision which comes as no real surprise, the Supreme Court has agreed to hear the FCC’s appeal of the 2008 decision of the U.S. Court of Appeals for the Third Circuit, which reversed the forfeiture meted out to CBS for the Janet Jackson Super Bowl incident. But having agreed to hear the appeal, the Supremes lost no time in vacating the lower court’s decision and shipping the case back down to the Third Circuit for further consideration in light of the recent decision in FCC v. Fox Television Stations, Inc.

As we have previously reported here and here, the Fox decision changes certain non-constitutional considerations relating to the FCC’s indecency policy. Since the Third Circuit’s decision was based on just such non-constitutional considerations, the Supreme Court’s remand is standard operating procedure.

The remand does set up the possibility that both Fox and CBS could return to the Supremes simultaneously. Both the Second Circuit (i.e., the Fox court) and the Third Circuit (i.e., the CBS/Janet Jackson court) will be getting their respective cases back at essentially the same time (i.e., now). Since the remaining issues are relatively straightforward, both courts might be able to deal with the remand proceedings in reasonably short order. If both courts were to issue decisions in those remands at approximately the same time, consolidated review by the Supreme Court would not be out of the question.

While both Fox and CBS/Janet Jackson involve FCC findings of “indecency”, the two cases are distinct in a number of ways. Perhaps most obviously, Fox involves mere words, while CBS/Janet Jackson involves the fleeting image of Ms. Jackson’s right breast. Consolidated consideration of both cases would provide the Supremes the opportunity to consider both the verbal and visual components of indecency regulation.

Check back to www.commlawblog.com for further developments.

FCC v. Fox: The Six Opinions Through The Goldberg Lens

[Blogmeister’s note: As part of our overall coverage of the on-going development of FCC indecency law and policy, we present here a nitty-gritty synopsis of the six separate opinions issued by the Supreme Court in FCC v. Fox. Veteran court-watcher and First Amendment guru Kevin Goldberg has read all 72 pages, so you don’t have to . . .]

Just because the fortune-teller got it right does not necessarily mean that we have to like it when the accurately-predicted future becomes present reality. Like when we correctly read the tea leaves in the wake of the November 4, 2008 oral arguments in FCC v. Fox Television Stations, Inc. The Supreme Court has – by the 5-4 margin we predicted (though we reversed the positions of Justices Kennedy and Souter) – overturned the earlier ruling against the Commission by the United States Court of Appeals for the Second Circuit.

The Supreme Court ruled that the FCC did not violate the Administrative Procedure Act (APA) when the Commission suddenly, and without prior warning to broadcasters, reversed 25 years of agency precedent by ruling that “fleeting expletives” broadcast on the 2002 and 2003 Billboard Music Awards violated the indecency rules.  The Court did not take any position as to whether the FCC’s application of the indecency rules violated the First Amendment.

 Our post-argument impressions on the case (which include a summary of key quotes from the oral arguments) and Harry Cole’s early thoughts on the Court's decision offer significant background.  Here’s a summary of the Court’s majority, concurring and dissenting opinions.

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FCC v. Fox - The Supreme Court Rules

First reaction to the Big Decision

[Blogmeister's note: Our crack team covered the oral argument in Fox last November, and will be providing additional coverage of the Court's decision released April 28.  The following is one commentator's view of the landscape.]

The Supreme Court has issued its long-awaited decision in FCC v. Fox Television Stations, Inc., the case involving the application of the FCC’s indecency policy to “fleeting expletives”. By a 5-4 vote, the Justices concluded that the FCC’s action was consistent with its statutory obligations under the Administrative Procedure Act. Accordingly, they reversed the contrary decision of the U.S. Court of Appeals for the Second Circuit and remanded the case back to the Second Circuit. Score one for the Commission.

While any decision favoring the Commission’s indecency policy in any way is troubling, the good news here is that the Supreme Court’s ruling changes very little on the indecency front. To the contrary, its primary effect in the indecency area is to set the stage for the next, and far more important, act in this long-running drama.

But the news is not all good. Lurking behind the high profile “celebrities talking dirty on TV” allure of the case is a major shift in a seemingly mundane legal doctrine, a shift that could affect FCC regulatory activity in all respects for years to come. So while many commentators may choose to dwell on the obvious “indecency” aspects of the ruling, the real importance of this decision lies elsewhere.

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Yes, Virginia, There are Updates

Just a quick update on some recent stories we've had on CommLawBlog.  There's a common thread running through all three.  A free CommLawBlog subscription to the first person who can find it...

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Reporter's Privilege Reported Promptly

We are very pleased to tell you that HR 985, the Free Flow of Information Act, was reported out of the House Judiciary Committee by voice vote on Wednesday, March 25. 

The Free Flow of Information Act is legislation that would, for the first time, create a reporter's privilege applicable in federal administrative and judicial proceedings. HR 985 is identical to its House predecessor, which passed by a vote of 398-21 in the 110th Congress.  It would create a “qualified” reporter's privilege available in all federal proceedings – not just court cases, but administrative and legislative hearings as well – for anyone who qualifies as a “journalist”. 

The bill defines “journalist” as one who “regularly gathers prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person’s livelihood or for substantial financial gain” (we're not exactly enamored of the financial component to this otherwise "functional" definition, but note that a Senate version of the bill does not contain that requirement). 

The bill strikes a balance between protecting the free flow of information from source to reporter to, ultimately, the public and the need to have a reporter testify when necessary to ensure a fair trial.  A reporter would be forced to testify only where it can be shown by a preponderance of the evidence that the information is critical to the investigation, prosecution, or defense of a criminal case, or dispositive of an issue in civil case, and if all other sources for the information have been exhausted.

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Power to the Parents?

At Congress’s direction, FCC inquires broadly about content-blocking technologies

When Congress tells the FCC to do something, the FCC has no choice: it’s got to follow orders. Back in December, Congress told the FCC to start an inquiry into “advanced blocking technologies and existing parental empowerment tools” so, sure enough, that’s what the FCC has done. On March 2 the Commission released a Notice of Inquiry just like it was ordered to.

The law that got this started – the Child Safe Viewing Act of 2007, which was signed by the President on December 2, 2008 – was not a model of specificity or precision. It directed the Commission to “initiate an inquiry to consider measures to examine”, in effect, the entire range of “blocking technologies” which might be available to “improve or enhance the ability of a parent to protect his or her child from any indecent or objectionable video or audio programming, as determined by such parent, that is transmitted through the use of wire, wireless, or radio communication.”

Gamely attempting to comply with that near-infinite mandate, the Commission is now seeking comment on content-blocking generally.

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From the Horses' Mouths

Ordure in the Court, Part II

Elsewhere on this blog we have posted reports about the oral argument in FCC v. Fox, the first broadcast indecency case to reach the Supreme Court in 30 years. From our notes taken during the argument, we have mined the following nuggets:

  • Justice Ginsburg noted that there was “no rhyme or reason” in the FCC’s application of its indecency policy.
  • In a brief reference to the “scarcity rationale” which has historically been invoked to justify content regulation of broadcasting, one justice suggested that that rationale was not involved in the seminal Pacifica case (the 1978 Supreme Court decision which upheld the FCC’s first enforcement action under its then-new indecency policy). In response, Justice Stevens pointed out that scarcity was indeed a basis for Red Lion (the 1969 Supreme Court decision upholding the Fairness Doctrine), and Red Lion, in turn, was a basis for Pacifica. No one in the courtroom was in a position to argue with that statement, since Stevens unquestionably knows whereof he speaks: he was the author of the plurality opinion in Pacifica.
  • Speaking of the scarcity rationale, Justice Ginsburg pointed out that Pacifica arose “before the Internet”, an observation which suggests that she may believe that the explosion in available media sources over the last 10-15 years might undermine the scarcity rationale.
  • When asked by Ginsburg how the FCC determines what the “community standards” for indecency are, the Commission’s lawyer responded that the FCC applies its “collective experience”.
  • In a discussion of whether the “community” is more tolerant of certain words today than it was in 1978, Justice Scalia bemoaned the “coarsening of manners” which he apparently perceives around him – and which he apparently attributes, at least in part, to broadcast content – and indicated that the expletives under consideration are not used “in polite society”.
  • Justice Stevens, who got the indecency ball rolling with his opinion in Pacifica, asked whether the determination of whether or not a particular word or term is indecent is dependent on whether it is “hilarious” -- a proposition which Justice Scalia re-stated (probably sarcastically) to ask whether bawdy jokes might be judged not indecent “if they’re really good”. Later, Stevens also inquired of the FCC’s lawyer whether the word “dung” is indecent. (Like any good lawyer, FCC counsel answered with a solid maybe.)

Court to Goldberg: Express Yourself Somewhere Else

(The following is an editorial sidebar from Kevin Goldberg, who swears that it's all true.)

Upon entering the Supreme Court chambers to hear arguments in FCC v. Fox Television Stations, Inc., I was asked by one of the Court's marshals to take off my very standard, very small "I voted" sticker (see illustration at left) because it was a form of "sloganeering" -- an act that shouldn't surprise me given the Court's record on election day issues (see, e.g. 2000) but still one that I find incredible when there were plenty of people expressing various messages by wearing items like flag pins on their lapels -- and at least one former Solicitor General (who was spectating just like I was) who was allowed to keep his "I voted" sticker intact.

Report from the Front: Team Coverage of Oral Arguments in FCC v. Fox

Three FHH attorneys who have followed the ups and downs of the FCC’s indecency policies over the years attended the Supreme Court oral argument in FCC v. Fox Television Stations, Inc., the first broadcast indecency case to reach the high court in 30 years. They filed the following reports with www.CommLawBlog.com.

 

Jeff Gee reports:

Anyone hoping to hear Justice Ginsburg drop the F-bomb in open court was sorely disappointed as the U.S. Supreme Court held oral arguments on the FCC's indecency rules. Justices and attorneys alike proceeded without a single utterance (fleeting or otherwise) of any of Carlin's famous seven dirty words. Instead, the audience was treated to debate on the finer points of the Administrative Procedure Act. What about the part where the FCC's rules violate First Amendment? Oddly enough, that might not matter too much.

As readers of our Memo to Clients may recall, the case being considered by the U.S. Supreme Court (formally titled FCC v. Fox Television Stations, Inc.) arose from a decision made by the U.S. Court of Appeals for the Second Circuit. The Second Circuit overturned the FCC's rules prohibiting "isolated" or "fleeting" indecent utterances solely on the grounds that the FCC failed to adequately justify its rules. Although the Second Circuit's decision also suggested that the FCC’s rules might not pass a First Amendment review, the Second Circuit made clear that its decision was based solely on administrative law and not constitutional law. As a result, the issue before the Supreme Court technically was not whether the FCC's rules are constitutional or even workable. Rather, the issue before the Court was whether the FCC sufficiently followed the rules applicable to Federal agencies as they make policy.

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Palin, the First Amendment and the Media - Need for Concern?

In September's "Memo to Clients", our readers were treated to an extensive analysis of the Presidential candidates’ positions on communications issues. Jeff Gee concluded that Senator McCain’s and Senator Obama’s views are - to the extent they have been stated - rather similar on matters affecting the broadcast and telecommunications industries (their opposing viewpoints on media ownership being the glaring exception).

We didn’t examine the views of the Vice Presidential candidates. After all, there really isn’t much information out there from which we might form any conclusions about the likely media policies of either Senator Biden or Governor Palin. Nevertheless, a recent statement made by Palin has caused us to ponder her overall agenda for the FCC and the communications industry. 

While being interviewed by Chris Plante on Washington, D.C. radio station WMAL, Palin made the following statement regarding media coverage of her strong statements about Obama’s past associations.

If [the media] convince enough voters that that is negative campaigning, for me to call Barack Obama out on his associations, then I don’t know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media.

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Virigina Anti-Spam Law Tossed

 The Prosecution of Jeremy Jaynes by the Counselor Russell McGuire

The Internet has long been described as the "Wild West" with regard to the application of law.  We disagree with this characterization in that many laws applying to traditional media are generally applicable to the Internet as well, but for the sake of a good analogy, we'll note that one of the most notorious "virtual" outlaws in recent years is one Jeremy Jaynes.  On September 12, 2008, Mr. Jaynes's conviction for violating Virginia's Anti-Spam law was overturned by that state's Supreme Court, thereby saving him from nine years in a very real jail. 

For nearly a decade, Mr. Jaynes rode through cyberspace leaving a trail of mayhem in his wake.  As prolific as he was evasive, he is believed to have sent hundreds of thousands of unsolicited Emails or "SPAM" a day from his home in Raleigh, North Carolina.  In three particularly active days in July 2003, he used falsified header information and sender domain names to transmit 12,197, 24,172, and 19,104 E-mails to unwilling recipients, thereby violating Virginia Code Section 18.2-152.3:1, in which the good people of Virginia have declared the sending of email from false domain names to be criminal offense – and a felony if more than 10,000 E-mails are sent in a single day.

When he was cornered and captured by the men with badges, compact discs found in Mr. Jaynes's home showed that he was in possession of more than 176 million E-mail addresses and more than 1.3 billion E-mail names (and you thought your E-mail accounts were becoming unmanageable).  Many of these were subscribers to America Online ("AOL").

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Prince to Baby: "You're Not Playing Fair"; Court to Prince: "He Might Be"

It's been almost a year since we first brought you the story of a woman who decided to file a lawsuit against Universal Music Publishing Company alleging that their filing of a Notice and Takedown Request with YouTube to remove this video of her 13 month old son dancing to Prince's "Let's Go Crazy" constituted legal misappropriation in violation of her rights:  

 

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Catty College Coeds Conceivably Confounding Craiglist Court Conquest?

You'll find legal services offered on Craigslist (we don't actually recommend hiring any of the lawyers that advertise there), but nothing found in these online classifieds may be as valuable to Internet content providers as a case the popular marketplace website itself won last week in federal court.  Those with a sharp eye honed on Section 230 of the Communications Decency Act, a statute we have previously discussed in this blog and in our Memo to Clients newsletter may want to hold off on celebrating just yet, as New Jersey prosecutors are considering legal action against a controversial site that has become all the rage on college campuses, the effect of which could undercut the entire rationale for Section 230. 

Our previous writings on Section 230 of the Communications Decency Act have reviewed how this statute continues to be interpreted very broadly by courts around the nation to offer protection to any "Internet content provider" against liability that would derive from content posted by a third party.  Rulings from several federal District and Appellate courts, as well major state Supreme Courts, make it clear that websites have broad power to modify, edit and even delete content without accepting responsibility for this third party content.    The law has most often been invoked as a defense in defamation cases, but it applies to any cause of action other than violations of federal criminal law and intellectual property violations (though we have discussed a separate legal protection against copyright infringement actions found in Section 512 of the Digital Millennium Copyright Act in the blog and MTC.

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Key Reforms to Freedom of Information Act Go to White House

The House of Representatives passed important legislation reforming the Freedom of Information Act via unanimous consent on December 18, clearing the "Open Government Act" for Presidential Signature after the Senate passed an identical version of the bill last week.

These reforms have been three years in the making.  Senators Patrick Leahy (D-VT) and John Cornyn (R-TX) introduced the Open Government Act in the 109th Congress but it stalled after passing the Senate Judiciary Committee.  A version introduced in the 109th Congress by Rep. Lamar Smith (R-TX) failed to get a vote in the House Committee on Government Reform. 

With those markers in place, several open government advocates, including the Sunshine in Government Initiative, which includes Fletcher Heald & Hildreth client the American Society of Newspaper Editors, had high hopes for this bill in 2007-2008.  Congress did not disappoint.

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Federal Shield Law Now Just a (Very Big) Two Steps from Reality

HR 2102, also known as the "Free Flow of Information Act" passed the House of Representatives by a vote of 398-21-- a margin that even the bill's supporters must admit exceeds their wildest dreams.

This represents the farthest progress to date for any attempt to enact a federal shield bill -- legislation to create a reporter's privilege applicable in federal proceedings. The bill would protect reporters from being compelled to testify in federal court and administrative proceedings except in very limited circumstances. It modifies the qualified privilege that exists in many states, with additional provisions specifically applicable to unique issues faced by federal authorities, such as situations where national security or the life or safety of an individual would be adversely affected if the reporter is not required to testify, as well as those situations in which a reporter's testimony is necessary to identify the leaker of trade secrets, personal medical information covered by the Health Insurance Portability and Accountability Act ("HIPPA") or financial information covered by the Gramm-Leach-Bliley Act. It also requires a court to engage in a balancing test before compelling a reporter to testify; the court must consider the public interest in requiring the reporter to testify against the interest in protecting a free press in that specific instance.

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House of Representatives to Vote on Reporter's Privilege

The House of Representatives appears ready to hold a Floor Vote this coming Tuesday, October 16, on HR 2102, the Free Flow of Information Act, a bill that will create, for the first time, a reporter's shield law applicable in federal proceedings.

Thirty-three states currently have shield laws and another 17 have judicially-created reporter's privileges. Many bear resemblance to the strong dissenting opinion from Justice Potter Stewart in the key 1972 Supreme Court case of Branzburg v. Hayes
. Although the Court ruled in that case that the First Amendment does not protect a reporter from being forced to testify before a Grand Jury, Justice Stewart argued that there were several important public interest considerations favoring the application of a qualified privilege in certain circumstances. Justice Stewart's opinion was followed by many lower federal courts and was the model for several state shield laws. But, despite the best efforts of the media and others, including the introduction of 99 different versions of shield legislation in the United States Congress between 1973 and 1978, there remains no legal basis for asserting the privilege in federal court.

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Justice Roberts: Student Speech is Bad; Corporate Speech is Good

Yesterday, we brought you the BHFJ case ("Bong Hits 4 Jesus"); today it's BCRA ("Bipartisan Campaign Reform Act" or "McCain-Feingold"). The Supreme Court's "other" First Amendment case from June 25, 2007 was probably the more important of the two, as far as broadcasters are concerned. But let's face it: it's just not as fun, is it? Especially when the collective opinions in Federal Election Commission v. Wisconsin Right to Life, Inc. weigh in at 93 pages...

The Bipartisan Campaign Reform Act was passed in 2002 as a means of limiting the money spent on election campaigns. Among the restrictions affecting broadcasters was Section 203, which criminalized the use of general treasury funds by any corporation to pay for an "electioneering communication," meaning any broadcast referring to a candidate for federal office that is aired within 30 days of a federal primary election or 60 days of a federal general election in the jurisdiction where the election is being held. A group could still fund such ads through a separate Political Action Committee.

This provision was previously upheld by the Supreme Court against a facial First Amendment challenge in McConnell v. Federal Election Commission. But the issue arose again after the Wisconsin Right to Life organization began broadcasting advertisements which mentioned by name certain Senators, including Wisconsin Senators Russell Feingold and Herb Kohl, and urged voters to contact those Senators to oppose a filibuster on the nomination votes of federal judges. These advertisements are posted on the organization's webpage. They ran through June and July 2004 but, come August 2004, would have been prohibited as electioneering communications. Wisconsin Right to Life filed suit against the Federal Election Commission ("FEC") for the right to continue airing the advertisements.

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Why does the Supreme Court Hate Baby Jesus?

Maybe it's not Jesus the Supreme Court hates. Maybe it's bong hits. Or perhaps just high school students.

Based on a ruling issued today -- the last day of the Court's 2006 term -- the answer could be any of the three, or all together. In a 5-4 opinion that carried the usual plethora of concurring and dissenting opinions, the Court ruled that the state of Alaska has the power to punish a student who displayed a sign saying "Bong Hits 4 Jesus", even though that student was not on school property at the time. The case is Morse v. Frederick

The case originated in 2002 when the Olympic torch relay passed through Juneau, Alaska on its way to Salt Lake City. Students at the Juneau-Douglas H.S. were permitted to leave class to watch the torch relay. As the torch passed, several students, including Joseph Frederick unfurled a banner reading "Bong Hits for Jesus". The students were told to take down the banner and, when he refused, Frederick was suspended for ten days under a school policy that punishes anyone who promotes illegal drug use. A series of appeals through the educational system and federal courts culminated in the United States Court of Appeals holding that the First Amendment prohibited punishment of this type for a statement that did not occur within the confines of the school grounds or activities.

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"Free Flow of Information Act" Introduced

This afternoon, Senators Christopher Dodd (D-CT) and Richard Lugar (R-IN) and Representatives Richard Boucher (D-VA) and Mike Pence (R-IN) introduced companion bills entitled the "Free Flow of Information Act."  These bills are the latest attempt at a federal reporter's privilege or "shield law" that would protect journalists from being compelled to testify in federal court proceedings or provide testimony, including that which would identify a confidential source, to any federal entity other than Congress.

The bills provide a qualified reporter's privilege that requires the government to show that the material sought is essential to a criminal or civil case and that all other sources for the information sought have been exhausted prior to compelling a reporter to testify.  There is a near-absolute protection for the identity of a confidential source which can only be overcome in five very narrow circumstances where the government must show an overriding need for information of a certain type.  In every case in which the privilege is invoked by a reporter, a reviewing court will have to balance the public interest in the disclosure of the information with the public's interest in protecting the right of the press to protect sources and information.

This bill is supported by over 50 media organizations and companies and provides a federal counterpart to the 49 states (and the District of Columbia) that have some form of statutory or judicially-created protection for reporters.