Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

A Member of the Law Professor Blogs Network

Friday, November 30, 2007

Fred Goldman Files Lawsuit Against Swedish Site

Fred Goldman, who owns the rights to the O.J. Simpson book If I Did It, has filed a lawsuit, apparently for copyright infringement, against the Swedish site The Pirate Bay for making the book available for download without permission. The Pirate Bay generally responds negatively when threatened with lawsuits.

November 30, 2007 | Permalink | TrackBack (0)

Richard Dawkins's Turkish Publisher May Face Charges of "Insulting Turkishness"

Richard Dawkins's Turkish publisher, Kuzey Publications, may face prosecution for its publication and distribution of his best-seller The God Delusion.  One reader has complained that the book is "hurtful to members of religions living in Turkey, and wanted the book banned and the publishers punished," according to publisher Erol Karaaslan. The government has not yet decided whether to file charges. If it does so, such a prosecution would be the latest in a string of actions attempted against authors and publishers and brought under Penal Code article 301 which prohibits "insulting Turkishness." Many foreign governments, particularly those of European Union members, have urged Turkey to amend that code article. Turkey would like to join the European Union. Read more here and here.

November 30, 2007 | Permalink | TrackBack (0)

Thursday, November 29, 2007

FCC Chair Kevin Martin Urges Loosening of Ownership Restriction--May Pave Way for Tribune Deal

FCC Chair Kevin Martin is expected to lead the agency's commissioners toward a temporary loosening of media cross-ownership rules for the Tribune Company at a meeting today, giving the company two years to do an important deal before the end of the year. Meanwhile, the FCC five are still discussing the larger question of more liberal cross-ownership policies in the bigger markets. Read more here and here.

November 29, 2007 | Permalink | TrackBack (0)

FCC Denies Cablevision's Application For Review; Grants Licensee WRNN Must Carry Request

Released today:

In a 3-2 vote, the FCC denied Cablevision's application for review in WRNN License Company, LLC (Memorandum Opinion and Order, 21 FCC Rcd 5952 (MB 2006)). It also ordered Cablevision to begin carrying licensee WRNN "within 60 days from the date on which WRNN provides the necessary specialized equipment to receive a good quality signal at Cablevision's principal headend."

Said the FCC, "In the WRNN-DT Modification Order, the Bureau applied the four factors set forth in Section 614(h)(1)(C) and concluded that all of the communities in Nassau County and certain communities in Suffolk County should be considered part of WRNN-DT’s local market. Cablevision’s application seeks review of the WRNN-DT Modification Order on the grounds that the Order is based on erroneous findings as to material questions of fact, does not consider Cablevision’s constitutional arguments, and conflicts with the Act and Commission precedent. Cablevision contends that the Bureau erred in its application of each statutory factor, and gave overwhelming weight to WRNN-DT’s signal coverage. WRNN opposed the application, arguing that the Bureau applied the four statutory factors properly and followed applicable Commission precedent.... Section 614(h)(1)(C) of the Act requires the Commission to include or exclude particular communities from a television station’s market to ensure that a television station is carried in the areas it serves and in its economic market.  We have reviewed the record in this proceeding, which need not be restated in detail, and we find that the Bureau correctly modified WRNN-DT’s market. "

With regard to WRNN's must carry request, the FCC said, "Turning to the specifics of Cablevision’s contentions, we first address Cablevision’s argument that mandatory carriage of WRNN-DT constitutes an as-applied First Amendment violation.  To the contrary, we find that Supreme Court precedent supports carriage of WRNN-DT’s signal.  In the context here – concerning a challenge to a content-neutral regulation – the intermediate scrutiny standard applies. Under that framework, the Supreme Court has sustained Section 614 of the Act’s mandatory carriage requirements against facial challenge, finding that the obligations further three important governmental interests unrelated to the suppression of free expression and that the statutorily imposed burden is no greater than necessary to further those interests. Even assuming a party may mount an as-applied First Amendment challenge to the carriage of an individual station in the face of this Supreme Court precedent, we find, applying that precedent to the facts at issue in this case, that Cablevision’s carriage of WRNN-DT furthers at least two of the three interests identified by the Court.  In particular, we find that carriage will help to ensure that the digital-only station (1) remains a viable option for viewers who rely on free, over-the-air television service in Nassau and Suffolk counties, and (2) continues to number among the multiplicity of information sources available to viewers in those counties. Moreover, compelled carriage of WRNN-DT does not burden substantially more speech than necessary because the obligation is no more extensive than is necessary to further the government interests identified above and is not more extensive than that occasioned by Cablevision's carriage of any other television broadcast station pursuant to section 614.... Second, we do not find that Cablevision has demonstrated that mandatory carriage of WRNN-DT would constitute a Fifth Amendment taking under either the “per se” or “regulatory” takings analyses. To qualify as a per se taking, the challenged government action must authorize a permanent physical occupation of property or result in the loss of all economically viable use of property. Per se takings are defined without regard to the public interest they may serve, the size of the occupation, or the economic impact on the property owner.  Contrary to Cablevision’s argument, we do not believe that a per se takings analysis applies here. The Supreme Court has advised that a per se taking is “relatively rare and easily identified,”and this is neither.  Mandatory carriage regulation effectuates no permanent physical occupation of a cable operator’s property, such as installation of the physical equipment at issue in Loretto v. Teleprompter Manhattan CATV Corp. Rather, a programming stream is transmitted in bits of data over cable bandwidth through electrons or photons at the speed of light while the cable operator retains complete control over its physical property (e.g., headend equipment).  Moreover, because carriage of a single station represents only a small fraction of available bandwidth, Cablevision has not shown a loss of all economically viable use of its property. Courts have rejected application of permanent physical occupation to the technological realm, and we believe these decisions to be consistent with the Supreme Court’s admonition that a permanent physical occupation of property is easily identifiable and “presents relatively few problems of proof.”

"As for its alternative takings claim, Cablevision presents virtually no substantive argument that requiring carriage of WRNN-DT would constitute a regulatory taking. A regulatory taking analysis is conducted under the multi-factor inquiry set forth in Penn Central Transportation Co. v. City of New York: (1) the character of the governmental action; (2) its economic impact; and (3) its interference with reasonable investment-backed expectations. Cablevision, however, addresses none of these factors.  Furthermore, in employing this test, we find no evidence in the record that requiring carriage of WRNN‑DT will have a significant economic impact on Cablevision or will interfere with the company’s reasonable, investment-backed expectations.  Indeed, based upon the statutory cap for commercial stations and the numerical limit for non-commercial stations, cable operators should reasonably expect to devote up to one-third of their capacity to carriage of local broadcast stations. Finally, we believe the governmental action at issue to be a modest attempt to “adjust the benefits and burdens of economic life to promote the common good,” in what traditionally has been and remains a regulated industry. Therefore, we reject Cablevision’s constitutional arguments, and for the above reasons deny Cablevision’s petition." [Footnotes omitted].

Read the entire Memorandum and Order here. 

Here's a link to the dissent of Commissioners Adelstein and Copps.

November 29, 2007 | Permalink | TrackBack (0)

Wednesday, November 28, 2007

News From the FCC

A story in today's New York Times discusses the apparently at-times contentious FCC meeting yesterday over FCC Chair Kevin Martin's proposal to regulate the cable industry more closely under the so-called 70/70 rule. The FCC Commissioners did agree, 3-2, to permit independent programmers to lease channels at more reasonable rates. Meanwhile, the politics goes on. Read Stephen Labaton's article here.

The FCC adopted additional rules and orders yesterday. Among them: a rule requiring broadcasters to provide more local programming information to the public.

The Federal Communications Commission (FCC) today adopted a Report and Order (Order) which requires television broadcasters to provide more information on the local programming they are broadcasting and facilitate the public’s access to that information.  The Commission is committed to establishing and maintaining a system of local broadcasting that is responsive to the unique interests and needs of individual communities.  Today’s action ensures the public is well informed about how well television stations are serving their local communities and will make broadcasters more accountable to their viewers.

Under today’s Order, television broadcasters must file a standardized programming form on a quarterly basis.  This form will provide the public with easily accessible information in a standardized format on each television station’s efforts to serve its community.  The form requires broadcasters to list various types of programming, including local civic programming, local electoral affairs programming, public service announcements, and independently produced programming, and also includes information about efforts that have been made to ascertain the programming needs of various segments of the community, and information regarding closed captioning and video described content. This form will replace the current issues/programs list, which required broadcasters to place in their public file on a quarterly basis a list of programs that have provided the station’s most significant treatment of community issues during the preceding three-month period.  The standardized programming form will be available online and filed with FCC.

In this Order, the Commission also specifically requires television licensees to make their public inspection file (with the exception of their political file) available online if they have Internet websites and notify their audiences twice daily about the location of the station’s public file.

Action by the Commission November 27, 2007, by Report and Order (FCC 07-205).  Chairman Martin, Commissioners Copps, Adelstein, and Tate with Commissioner McDowell concurring in part and dissenting in part.  Separate statements issued by Chairman Martin, Commissioners Copps, Adelstein, Tate, and McDowell.

Read the press release here.

The FCC also adopted new rules regarding low power FM radio.

The Federal Communications Commission (Commission) today adopted a wide-ranging series of ownership, eligibility and technical rules and sought comment on additional technical matters in the Low Power FM Third Report and Order (Order) and Second Noticed of Proposed Rule.

In this Order, the Commission adopts a number of rules and policies designed to foster and protect LPFM radio service which creates opportunities for new voices on the airwaves and to allow local groups, including schools, churches, and other community-based organizations, to provide programming responsive to local community needs and interests.  The Commission’s action today includes changes to strengthen and promote the long-term viability of the LPFM service, and the localism and diversity goals that this service is intended to advance.  The Order:

·        Allows the transfer of LFPM licenses subject to significant limitations.

·        Reinstates the Commission’s rule that all LPFM authorization holders be local to the community and limits ownership to one station per licensee.

·        Clarifies that repetitious, automated programming does not meet the local origination requirement. 

·        Encourages voluntary time-sharing agreements between applicants.

·        Imposes an application cap on 2003 FM translator window filers.

·        Limits the responsibility of LPFM stations to resolve interference caused to subsequently authorized full-service stations.

·        Establishes a procedural framework for considering short-spacing waivers and a going-forward displacement policy for LPFM stations.

In the Second Notice of Proposed Rule-Making, the Commission:

·        Seeks comment on technical rules that could potentially expand LPFM licensing opportunities.

·        Tentatively concludes that full service stations must provide technical and financial assistance to LPFM stations when implementation of a full service station facility proposal would cause interference to an LPFM station.

·        Tentatively concludes that the Commission should adopt a contour-based protection methodology to expand LPFM licensing opportunities.

  • Intends to address the issues in the FNPRM within 6 months, and that the next filing window for a non-tabled aural licensed service will be for LPFM.

  • Recommends to Congress that it remove the requirement that LPFM stations protect full-power stations operating on third adjacent channels.

Action by the Commission November 27, 2007, by Third Report and Order and Second Further Notice of Proposed Rulemaking (FCC 07-204).  Chairman Martin, Commissioners Copps, and Adelstein with Commissioners Tate and McDowell approving in part and dissenting in part. Separate statements issued by Chairman Martin, Commissioners Copps, Adelstein, Tate, and McDowell.

Link to the press release here.

November 28, 2007 | Permalink | TrackBack (0)

Tuesday, November 27, 2007

Former British PM, Wife, Get Settlement From Newspaper Publisher Over Photos

Former British Prime Minister Tony Blair and his wife Cherie have won a substantial amount in damages from the publishers of the newspaper Daily Mail, which admits violating their rights of privacy over photographs taken while the Blairs were vacationing in Barbados. These particular pictures were taken with telephoto lenses while the couple were in "secluded and private places". The Blairs have donated the money to charity. Their law firm, Atkins Solicitors, announced the settlement on its website. According to an article in the Guardian, the photos are still available on the Mail's website, but a communication from Mr. Atkins indicates that these photos are from a previous holiday and not the subject of this settlement.

November 27, 2007 | Permalink | TrackBack (0)

Research Funding Available: Dirksen Congressional Center

* Congressional Research Awards Announcement *

DEADLINE: All proposals must be received no later than February 1, 2008.

The Dirksen Congressional Center invites applications for grants to fund research on congressional leadership and the U.S. Congress. A total of up to $30,000 will be available in 2008. Awards range from a few hundred dollars to $3,500.

The competition is open to individuals with a serious interest in studying Congress. Political scientists, historians, biographers, scholars of public administration or American studies, and journalists are among those eligible. The Center encourages graduate students who have successfully defended their dissertation prospectus to apply and awards a significant portion of the funds for dissertation research.

The awards program does not fund undergraduate or pre-Ph.D. study. Organizations are not eligible. Research teams of two or more individuals are eligible. No institutional overhead or indirect costs may be claimed against a Congressional Research Award.

There is no standard application form. Applicants are responsible for showing the relationship between their work and the awards program guidelines. Applications are accepted at any time. Applications which exceed the page limit and incomplete applications will NOT be forwarded to the screening committee for consideration.

All application materials must be received on or before February 1, 2008. Awards will be announced in March 2008. Complete information about eligibility and application procedures may be found at The Center's Web site:

http://www.dirksencenter.org/print_grants_CRAs.htm. Frank Mackaman is the program officer -- mailto:fmackaman@dirksencenter.org

.

The Center, named for the late Senate Minority Leader Everett M. Dirksen, is a private, nonpartisan, nonprofit research and educational organization devoted to the study of Congress and its leaders. Since 1978, the Congressional Research Awards (formerly the Congressional Research Grants) program has paid out $680,000 to support 350 projects.

November 27, 2007 | Permalink | TrackBack (0)

Appeals Court Affirms Denial of Fees to Newspaper in Open Records Lawsuit

The Nashville Post sued the Tennessee Education Lottery Corporation over its failure to produce the "unredacted termination letter of [an] individual who had been investigated for alleged workplace harassment" approximately one day after the Corporation refused to produce it. The trial court eventually ruled that the Corporation must produce the letter but declined to award attorneys' fees to the newspaper because the Lottery had not acted in "bad faith" as required by the statute. The paper sued.

In analyzing the provision, the appellate court determined that the statute's requirement of "willfulness" is equivalent to "bad faith."

"The “willful” element has been described as “synonymous to a bad faith requirement,”...and the standard for determining whether the refusal was willful and knowing has been expressed in varying ways. Nonetheless, in actuality our courts have consistently applied the same analysis. That analysis emphasizes the component of the statutory standard that the entity or its officials know that the record sought is public and subject to disclosure. It evaluates the validity of the refusing entity's legal position supporting its refusal....Critical to that determination is an evaluation of the clarity, or lack thereof, of the law on the issue involved. As reiterated by our Supreme Court in Schneider, as quoted above, courts will not impute to a governmental entity “a duty to foretell an uncertain judicial future.” Accordingly, requests for fees have been denied where the question of whether the record sought was public was “not straightforward or simple,”...or involved “complex interpretation of controlling case law,”....Most of the cases on attorneys’ fees under the Act have involved appellate review of an award of fees, and the emphasis has been on the good faith involved in the assertion that the records at issue were exempt from disclosure. Herein, the Lottery based its position of refusing disclosure on the attorney-client privilege and the attorney work product doctrine. In another case involving an attorney-directed investigation of allegations of harassment by a governmental employee, we have held that the attorney-client privilege and/or the work product doctrine apply, in appropriate circumstances, to create an exception to disclosure under the Act...." 

Further, held the appellate court, "As the language of the attorneys’ fee provision makes clear, there is another step in the fee award analysis. Even if the trial court makes a finding of knowledge and willfulness, the statute does not require the trial court to award attorneys’ fees. If the trial court makes such a finding, Tenn. Code Ann. §10-7-505(g) provides the trial court “may, in its discretion” assess costs and fees....

"A brief history of the sequence of events is helpful. On Thursday, January 5, 2006, the Lottery terminated Mr. Adams’ employment by giving him the Termination Letter in question. The next day, the Lottery issued a press release about the firing. On Sunday, January 8, 2006, the Nashville Post e-mailed the Lottery requesting Mr. Adams’ personnel file, agreements regarding his compensation, e-mails among and mobile phone records of various Lottery officials for the 6 month period prior to the request, and all documents about the investigation leading to Mr. Adams’ departure. While the Termination Letter was clearly within Nashville Post's request (as part of the personnel file or the investigation) it was not mentioned by name. This request involved a large number of files and documents. The Lottery responded on the same day of this request, approximately two hours after the request was e-mailed. The Lottery spokesperson replied that she would release a redacted copy of the personnel file; would need to get advice on the compensation agreements and the mobile phone records and would respond the next day; needed clarification on the e-mail request; and that access to information regarding the investigation was being denied as exempt from disclosure because of attorney-client privilege and work product doctrine. As to Mr. Adams’ personnel file, the Lottery responded that the personnel files would be produced with information made confidential by statute to be redacted. The Lottery's response, likewise, did not reference the Termination Letter. The Lottery's response also stated that the Lottery would contact the Nashville Post the next day, Monday, January 9 with more information. On Monday morning at 8:37 a.m., Nashville Post filed this Public Records Act lawsuit. While the Lottery provided the Nashville Post with a copy of a redacted Termination Letter after the petition was filed, the Lottery's attorneys later acknowledged at the January 18 hearing that it was not privileged since it had been seen by a third party, Mr. Adams. Given this sequence of events, we do not believe the trial court abused its discretion in refusing to award fees. The award of fees is appropriate when incurring those fees by bringing an action under the Act is necessary to gain access. By filing its petition at 8:30 Monday morning, Nashville Post did not allow time for any conversation or communication between the parties or their counsel. Nor did it allow any time for the Lottery to obtain further legal advice or clarification regarding the privileged nature of the Termination Letter. The Lottery acted promptly in responding to a request made on a Sunday and informed Nashville Post that it would provide more information on the next day. Nashville Post did not wait, but immediately filed its petition.  A petitioner is not required to communicate with a governmental entity to clarify positions or engage in discussions about possible fallacies in the entity's positions as to nondisclosure, but may file a petition upon the initial refusal to produce. The burden is then on the government to prove the documents are protected. However, failure to allow the governmental entity time to adequately assess what has been requested and failure to engage in any discourse with the governmental entity makes it difficult to argue that the governmental entity acted in bad faith when the first time the error of government's legal position is pointed out is after the petition has been filed. Here, the Lottery was given less than 24 hours, including a Sunday night, to respond to the request before Nashville Post filed suit. After the suit was filed, the Lottery continued in its efforts, albeit erroneous, to comply with Nashville Post's request by providing a redacted version of the Termination Letter. Even when governmental officials are proceeding in the best of faith, it takes time to understand the nature of the request and the breadth of documents that may be included, research applicable law on exceptions to the Act, make judgments often on questionable legal issues and then articulate an accurate response to the request. With many requests, such as the one made by Nashville Post, the analysis must be done quickly for numerous documents. The Termination Letter was not the only document requested but was one of many documents included in the request and turned over to the requestor. Based on the foregoing, we cannot conclude that the trial court abused its discretion in declining to award costs and attorneys’ fees under Tenn. Code Ann. §10-7-505(g). Costs of this appeal are assessed against the Nashville Post Company for which execution may issue if necessary."
Read the entire ruling here. The case is Nashville Post v. Tennessee Education Lottery Corp., No. M2006-01863-COA-R3-CV (2007).

November 27, 2007 | Permalink | TrackBack (0)

Monday, November 26, 2007

FCC's Kevin Martin Wants Vote For Cable Industry Regulation; Could Come About Tomorrow

e New York Times's Stephen Labaton covers a proposed vote tomorrow by FCC Commissioners to regulate the cable industry more aggressively. FCC Chair Kevin Martin thinks the industry is too big, and wants an official finding by the FCC saying so, but it's possible that other commissioners are not convinced and want more time to study the question. Such a finding would allow the FCC to adopt new rules concerning cable rates and programming.

November 26, 2007 | Permalink | TrackBack (0)