June 2012

Void for Vagueness

[Commentary] Writing the majority opinion, Justice Anthony Kennedy said the Federal Communications Commission’s standards were too vague and thus violated the broadcasters’ Fifth Amendment due process rights.

The narrow ruling did not address a broader issue: the government’s continued authority to regulate “indecent but not obscene” material on television. That was established in a 1978 Supreme Court case allowing the government to prohibit “indecent” speech (which the First Amendment protects) during hours when children are likely to be watching or hearing the broadcast. Justice Ruth Bader Ginsburg, who voted with the majority but wrote a brief separate opinion, argued that the pervasiveness of the Internet demands that the 1978 decision be revisited. She is right. The Supreme Court strongly hinted that the FCC should “modify its current indecency policy” in light of the public interest and to meet constitutional requirements. The FCC should take that suggestion immediately.

Can You Say That on TV? Broadcasters Aren’t Sure

Imagine a world where it would be OK to use particularly foul language in an e-mail sent from your smartphone, but where you would be fined if you uttered the same words during a phone call. That is in essence the world that television and radio broadcasters continue to occupy today, after the Supreme Court unanimously refused to wade into the dispute over whether the First Amendment should apply to 21st-century communications in the same, compartmentalized way that the court commanded in the 20th.

In that world, cable programmers can say and display just about anything they want and not run afoul of the Federal Communications Commission’s indecency standards, because the FCC does not regulate cable television. Television broadcasters, however — ABC, NBC, CBS, FOX, MyNetwork, Univision and a passel of independent channels — are bound by rules under which curse words or nudity, however fleeting, can subject them to penalties. Broadcasters have little real grasp of what is allowed and what is not. Similarly, the public has no idea what to expect; the next time Cher appears on a live awards show, should adult viewers cover the ears of their 8-year-olds, or can they depend on the broadcasters to censor indecent content?

After Supreme Court ruling, FCC must give clear indecency standards

[Commentary] The US Supreme Court took the wise step of affirming the federal government’s ability to regulate indecency in the public airwaves. But to protect free speech, the justices also insisted that TV broadcasters deserve “fair notice” on what is considered indecent. The 8-to-0 decision overturns hefty fines imposed on Fox and ABC for their airing of “fleeting expletives” and momentary nudity during broadcasts a decade ago. And it pushes the Federal Communications Commission (FCC) to now come up with new – and less vague – standards. Those new rules need to satisfy a public interest in safeguarding children in the home while also meeting a constitutional requirement to provide enough clarity so that broadcasters don’t censor themselves simply out of fear. This is a fine line to walk. The FCC has its work cut out for it. Defining indecency is as troublesome as knowing how to regulate it with fairness. No doubt courts will revisit any new FCC rules. But for now the court has struck the right balance between vice on TV and the vice of legal vagueness.

AT&T fighting FCC over special access

AT&T is girding for another regulatory battle with the Federal Communications Commission — this time over special access regulations.

Special access isn’t as high-profile as fights between AT&T and the Federal Communications Commission over other issues, such as net neutrality regulations or the telecom company’s failed bid to acquire T-Mobile USA. But it makes for another bitter dispute between AT&T and the FCC, one that could wind up in court. The agency has until June 25 to vote on an order that will affect how much carriers such as AT&T can charge for access to key broadband infrastructure. An order circulating at the FCC would deny AT&T’s petition for regulatory relief and suspend the mechanisms that provide a pathway out of price controls on special access, according to Thomas Jones of the NoChokePoints coalition. The coalition represents competitive carriers and associations that rely on special access lines including Sprint, Cricket and the CCIA. AT&T wants relief from special access price caps it is subject to in the San Francisco and San Antonio markets. The FCC’s prospective order — which AT&T could challenge in court — would take the country in the wrong direction, AT&T argues.

Call Me, Pay Fee

[Commentary] Political candidates and organizations are exempted from the National Do Not Call Registry, created by Congress in 2003. A simple, low-tech regulatory change could shift the advantage decisively back in the direction of privacy.

All telephone service providers should be required to offer every subscriber the option of accepting only “bonded” calls. To complete a call to a subscriber electing this option, the caller would have to show willingness and ability to compensate the recipient — should the latter designate the call a nuisance. Before calls to these numbers could be completed, a message would state the amount of the potential charge. A few seconds after the connection is established, the recipient would have the option of terminating the call and charging the caller by pressing a keypad button. Phone customers choosing this option could specify the amount that callers would place at risk. And they could maintain lists of favored callers, from whom calls would be accepted without risk of penalty. These might include relatives, friends, organizations from which communications are particularly welcome or parties from whom a callback has been specifically requested.

[James B. Rule is a sociologist and a scholar at the Center for the Study of Law and Society at the University of California, Berkeley, School of Law.]

Level of Music Label Power Is Debated in Senate Hearing

Is the music industry like other businesses, and thus subject to concerns about market concentration, or is it an anomaly in which nothing matters but hits? That was one of the central questions at a Senate hearing about a proposed $1.9 billion deal in which the Universal Music Group would acquire the record labels of EMI, giving Universal — already the world’s largest music company — control of the recordings of the Beatles, the Beach Boys and Katy Perry.

“In almost all industries, reducing the number of competitors from four to three expands the market power of the remaining companies and increases the risk of higher prices,” asked Senate Antitrust Subcommittee Chairman Herb Kohl (D-WI). “Why shouldn’t these same principles apply to the music business?” Universal, a division of the French conglomerate Vivendi, says its investment will reinvigorate EMI, which was hurt by a disastrous private equity deal. Opponents worry that Universal, which would gain a 40 percent market share as a result of the deal, would assume undue influence over digital music services that depend on the labels for licenses.

Netflix may have to provide closed captions online

U.S. District Judge Michael Ponsor of Springfield (MA) has taken a step toward requiring Netflix to provide closed-captioning for the deaf on its video-streaming website, ruling that federal disability laws cover businesses that serve their customers online.

Netflix is the dominant provider of movies and TV programs on the Internet, with more than 20 million subscribers. The National Association for the Deaf accused the company of violating the law by withholding closed-captioning from most of the videos on its "Watch Instantly" on-demand website. Netflix sought to dismiss the suit, arguing that the Americans with Disabilities Act requires accommodations for the disabled only in stores and other physical structures - an argument accepted in the past by some courts. Judge Ponsor said the law prohibits discrimination in any venue, including the Internet.

CBS Takes On ESPN Radio

CBS is launching a sports radio network that will compete with Walt Disney’s ESPN Radio, highlighting broadcasters' latest efforts to monetize lucrative sports content.

CBS Sports Radio will be a partnership with Cumulus Media Inc., which will distribute CBS content to radio stations nationwide, including 67 stations owned by Cumulus. Cumulus will end its existing ad sales and distribution arrangement with ESPN, and won't renew syndication deals with ESPN at its own radio stations. ESPN's relationship with its affiliates -- which it arranges independent of Cumulus -- won't be affected. As it launches later this year, CBS Sports Radio will reach close to 10 million listeners at the country's 50 biggest radio markets, CBS said, including 90% of the top 10 radio markets. ESPN's Audio division reaches around 24 million listeners per week through its own stations and affiliates.

Texas Sues Google to Get at “Privileged” Documents

When the Texas attorney general’s office first opened its investigation into Google’s business practices, the search behemoth promised to cooperate. But two years later, it appears to have fallen short of that pledge.

This week, Texas AG Greg Abbott (R) filed a civil suit against Google demanding the company hand over a bunch of documents it has allegedly been withholding from Abbott’s office. Evidently Google has, on a number of occasions, either redacted documentation or refused outright to turn documents over, claiming attorney-client privilege. But according to Abbott, many of the documents at issue aren’t protected because they either A) weren’t sent to an actual attorney, or B) didn’t request a legal review.

Bill Clinton urges ad industry to address social issues

President Bill Clinton challenged an audience filled with advertising, marketing and media industry employees to use their professional skills to address social, economic and climate problems from around the globe.

"The communicators will have a profound influence on how the next 20 or 30 years will turn out," he said. Speaking at a seminar in Cannes sponsored by Latin American ad agency Grupo ABC, Clinton urged those in the audience to collaborate and brainstorm with each other to solve issues such as global warming and the vast economic disparities among various populations.

Benton

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