Media Law Prof Blog

Think "Keep Quiet"

Yesterday, Apple and Nicholas M. Ciarelli finally came to an agreement. Mr. Ciarelli, who began running a website, "Think Secret," when he began his studies at Harvard, has spent his undergraduate years fending off Apple's lawsuits because of the information he disclosed on his site. Apple sued others, who claimed reporters' privileges, and lost in the courts. The settlement into which he and the company have entered is confidential, but as one of its conditions, he will shut down his site. Read more here. Here's some reaction from the blogosphere.

The Further Googlization of America

The FTC has said okay to that Google-Double Click merger, but the European Union has still not decided whether such a deal would violate antitrust laws. Read more here in a New York Times article published today.

Judge To Lawyers: Where's the Boss

U. S. District Court Judge Jack Weinstein wonders where the big fish are. He has put off sentencing of those convicted in the Newsday circulation trial, asking attorneys in the case to file more paperwork, and apparently opining that restitution is a better remedy than prison time.

Ofcom Fines Channel 4 1.5 Million Pounds in Phone In Scandal

The Guardian writes that Ofcom has fined Channel 4 a million and half pounds over that phone-in "scam" involving a number of shows. Members of the public were encouraged to compete but had no chance of winning prizes. In addition to paying the hefty fine, Channel 4 will also donate money to some charities. Read more here and here (Ofcom adjudication).

Commissioner Martin's Statement on Media Ownership

FCC Chair Kevin Martin's statement on Media Ownership (reproduced below.  Here is a link to the press release and the attachment).

changing the local TV rule, the local radio rule, the local TV/radio rule, the national TV cap, or the national cable cap. Unfortunately, my Democratic colleagues have been quick to say no to whatever was proposed but never getting to yes or even putting forward their own ideas on the substance of the issues before us. They wanted public hearings. We agreed. And we provided six. They asked for independent studies. We agreed. Only one Commissioner, later in the process, suggested authors for a study. We agreed again, and created another study for those authors to do. They asked for the studies to be made public. We agreed. They then complained that the studies were posted on the web too soon. They asked for the studies to be peer reviewed. We agreed. They asked for peer reviews to be made public. We agreed. They then presented us with new individuals they wanted to do additional peer reviews. We again agreed. They then demanded an entirely separate comment cycle on just the peer reviews. They asked me to complete the localism hearings. We agreed. They then wanted to complete the localism report. We again agreed. They wanted an NPRM on localism. We again agreed. They then wanted more time for the Commission to consider the localism issues and do a final order. And finally, they demanded I publish my proposed rule. I agreed. They then criticized me for making the proposal public in The New York Times. They asked for time for the public to comment on the proposed rule change. I agreed. They then demanded a new NPRM on the proposal with many months of comment. This is a long way of stating the obvious. For a year and half, I have attempted to respond to the legitimate concerns about conducting an open and transparent process with ample opportunity for public input. At each step along the way, as I was crossing the goal line, the goal posts were moved. While I have and will continue to seek consensus, I have come to the conclusion that it won’t ever be possible to ever reach consensus on the media ownership issue. Nevertheless, I still believe it is important for the Commission and for the American people that we render a decision on this issue. We must respond to the Court remand and to Congress which requires us to review the rules. And we must provide certainty to the media industry which for years has operated in a climate of uncertainty. In sum, I believe the time has come to act. And I believe today’s very modest relaxation of the one rule not relaxed since 1975 is appropriate.

Over the past year and a half the Commission has had to grapple with the most contentious and divisive issue to come before it: the review of the media ownership rules. Today’s Order strikes a balance between preserving the values that make up the foundation of our media regulations while ensuring those regulations keep apace with the marketplace of today. A robust marketplace of ideas is by necessity one that reflects varied perspectives and viewpoints. Indeed, the opportunity to express diverse viewpoints lies at the heart of our democracy. To that end, the FCC’s media ownership rules are intended to further three core goals: competition, diversity, and localism. Section 202(h) of the 1996 Telecommunications Act, as amended, requires the Commission to periodically review its broadcast ownership rules to determine “whether any of such rules are necessary in the public interest as a result of competition.” It goes on to read, “The Commission shall repeal or modify any regulation it determines to be no onger in the public interest.”  In 2003, the Commission conducted a comprehensive review of its media ownership rules, significantly reducing the restrictions on owning television stations, radio stations and newspapers in the same market and nationally. Congress and the court overturned almost all of those changes. There was one exception. The court specifically upheld the Commission’s determination that the absolute ban on newspaper/broadcast cross-ownership was no longer necessary. The court agreed that “…reasoned analysis supports the Commission’s determination that the blanket ban on newspaper/broadcast cross-ownership was no longer in the public interest.” It has been over four years since the Third Circuit stayed the Commission’s previous rules and over three years since the Third Circuit instructed the Commission to respond to the court with amended rules. It is against this backdrop that the FCC undertook a lengthy, spirited, and careful reconsideration of our media ownership rules. In 2003, when we last conducted a review of the media ownership rules, many expressed concern about the process. Specifically, people complained that there were not enough hearings, not enough studies, and not enough opportunity for comments and public input. When we began eighteen months ago, the  ommission committed to conducting this proceeding in a manner that was more open and allowed for more public participation.

I believe that is what the Commission has done. First, we provided for a long public comment period of 120 days, which we subsequently extended. We held six hearings across the country at a cost of more than $200,000: one each in Los Angeles, California, Nashville, Tennessee, Harrisburg, Pennsylvania, Tampa Bay, Florida, Chicago, Illinois, and Seattle, Washington. And, we held two additional hearings specifically focused on localism in Portland, Maine and in Washington, DC. The goal of these hearings was to more fully and directly involve the  American people in the process.

We listened to and recorded thousands of oral comments, and allowed for extensions of time to file written comments on several occasions. We’ve received over 166,000 written comments in this proceeding. We spent almost $700,000 on ten independent studies. I solicited and incorporated input from all of my colleagues on the Commission about the topics and authors of those studies. We put those studies out for peer review and for public comment and made all the underlying data available to the public.

Although not required, I took the unusual step of publishing the actual text of the one rule I thought we should amend. Because of the intensely controversial nature of the media ownership proceeding and my desire for an open and transparent process, I wanted to ensure that Members of Congress and the public had the opportunity to review the actual rule prior to any Commission action.

We cannot ignore the fact that the media marketplace is considerably different than it was when the newspaper/broadcast cross-ownership rule was put in place more than thirty years ago. Back then, cable was a nascent service, satellite television did not exist and there was no Internet. Indeed the newspaper/broadcast cross-ownership rule is the only rule not to have been updated in 3 decades, despite that fact that FCC Chairmen – both Democrat and Republican—have advocated doing so. In fact, Chairman Reed Hundt argued for relaxation in 1996 noting, “the newspaper/broadcast cross ownership rule is right now impairing the future prospects of an important source of education and information: the newspaper industry.” Application of Capital Cities/ABC, Inc., Memorandum Op. & Order, 11 FCC Rcd 5841, 5906 (1996). And noted above, in 2003 the Third Circuit recognized this fact when it upheld the Commission's elimination of the newspaper/broadcast cross-ownership ban, saying that it was “no longer in the public interest.”

Consumers have benefited from the explosion of new sources of news and information. But according to almost every measure newspapers are struggling. At least 300 daily papers have stopped publishing over the past thirty years. Their circulation is down and their advertising revenue is shrinking. Newspapers in financial difficulty oftentimes have little choice but to scale back local news gathering to cut costs. In 2007 alone, 24 newsroom staff at The Boston Globe were fired, including 2 Pulitzer Prize-winning reporters; the Minneapolis Star Tribune fired 145 employees, including 50 from their newsroom; 20 were fired by the Rocky Mountain News; the Detroit Free Press and The Detroit News announced cuts totaling 110 employees; and the San Francisco Chronicle planned to cut 25% of its newsroom staff.

Some have suggested that it is not in the business of the FCC to regulate newspapers and their condition should be of no concern to us. If that is the case, then why do we have rules about what newspapers can or cannot own? Without newspapers and their local news gathering efforts, we would be worse off. We would be less informed about our communities and have fewer outlets for the expression of independent thinking and a diversity of viewpoints. I believe a vibrant print press is one of the institutional pillars upon which our free society is built. In their role as watchdog and informer of the citizenry, newspapers often act as a check on the power of other institutions and are the voice of the people. Allowing cross-ownership may help to forestall the erosion in local news coverage by enabling companies to share these local news gathering costs across multiple media platforms. Today’s Order amends the 32-year-old absolute ban on newspaper/broadcast cross-ownership. The revised newspaper/broadcast cross-ownership rule would allow a newspaper to purchase a broadcast station—but not one of the top four television stations—in the largest 20 cities in the country as long as 8 independent voices remain. This relatively minor loosening of the ban on newspaper/broadcast crossownership in markets where there are many voices and sufficient competition will help strike a balance between ensuring the quality of local news gathering while guarding against too much concentration.

As I have previously stated, I always intended the negative presumption for all other transactions to be a very high hurdle. As I testified before Congress, I invited suggestions from my colleagues and those in the public interest community as to how we could tighten that standard so everyone would agree it was not a loophole. The edits we included in the order were made at the suggestion of the public interest and consumer advocacy groups to make more meaningful the presumption against transactions in smaller markets. I believe we did that today by saying expressly that we will require any applicant attempting to overcome a negative presumption to demonstrate by clear and convincing evidence that post-merger, the merged entity will increase the diversity of independent news outlets and increase competition among independent news sources in the relevant market. Our analysis of the four factors will inform this determination. In contrast to the FCC’s actions 4 years ago and in response to many of the public comments we received in the proceeding, we do not loosen any other ownership rule. We do not permit companies to own any more radio or television stations either in a single market or nationally. Indeed this rule change is notably more conservative in approach than the remanded newspaper/broadcast cross ownership rule that the Commission adopted in 2003. That rule would have allowed transactions in the top 170 markets. The rule we adopt today would allow only a subset of transactions in only the top 20 markets, which would still be subject to an individualized determination that the transaction is in the public interest. The new rule balances the need to support the availability and sustainability of local news while not significantly increasing local concentration or harming diversity. As the Commission revises its media ownership rules, we must not lose sight of two critical public interest goals – localism and diversity. Indeed, I believe that it is incumbent upon the Commission to do everything it can right now to further these goals and I am pleased the Commission is going to act on both today. As difficult as these issues are they are some of the most important to come before us. In fact as many have noted throughout this proceeding, promoting localism and diversity as well as responding to the Congress and the Court on the media ownership rules themselves, have been pending before the Commission for far too long. These issues also are ripe for decision and should not be put off any longer.

Finally, I want to specifically address some of the comments made by colleagues here today. Commissioner Copps has criticized the process including what he considers to be insufficient time for the public to comment on the proposed rule change. I want remind my friend and colleague of the time period which the public was given just last year to review and comment on the commitments made by AT&T and Bell South during the review of their merger. In that context we provided ten days for the public to consider their initial pledges. However, Commissioners Copps and Adelstein then negotiated significant new concessions with the companies on December 28th. The Commission approved the merger based on those new concessions only one day later, on December 29 th , with absolutely no opportunity to know let alone comment on what was adopted. Ironically, Commissioner Copps said at the time, “Indeed, I believe that this proceeding has allowed for more comment and sharing of knowledge by interested parties than any merger consideration that I have participated in during the five years I have served on the Commission.”

Testifying before Congress, giving interviews to the press and again here this morning, Commissioner Adelstein has accused the Commission of an unprecedented act of defiance against Congress. It is worth noting however, that the net neutrality commitment he negotiated with AT&T and Bell South last was exactly the same proposal that had been rejected in legislation that failed to pass in both chambers of Congress.

Indeed, the House of Representatives rejected the exact net neutrality proposal by a recorded vote of 269 to 152 just six months before he and Commissioner Copps insisted on including it.

I do not raise these issues to attack my colleagues. Despite the contentious and politically divisive nature of the media ownership issue we have good working relationships and 95% of the items that come before us are adopted by a bipartisan majority. I remind them of the previous process only to make a larger point. Much of the criticism about the process in this proceeding is really about difference on the substance of the issue itself. However, persistent opposition to the Commission acting on the media ownership rules is not the same as lack of debate in the proceeding. I appreciate that my colleagues and I have different views on the amending the newspaper broadcast cross ownership rule. But I reject the claims that the process has been unfair or even too rushed. At every step of the process during the last 18 months, whether it came to picking dates or cities for public hearings or commissioning independent studies, I have continually sought, albeit unsuccessfully, consensus with my colleagues throughout this process. For instance, I provided my colleagues a public notice announcing dates for all the remaining hearings, including the Seattle hearing, over a month before it was held, but they objected to its release. When we finally announced the Seattle hearing date publicly a week prior to the hearing, they objected that we hadn’t provided enough notice. They also claim I didn’t listen to the comments of the people in Seattle. However, only 2 people even mentioned newspaper cross-ownership, and one in fact supported relaxation. Indeed, the majority of people expressed concern about consolidation generally, and I believe we are responding by  not 

FCC Commissioner Testimony Before the Senate Committee on Commerce, Science & Transportation

Here's testimony from the FCC Commissioners before the Senate Committee on Commerce, Science & Transportation, December 13, 2007.

Testimony of Commissioner Martin.

Testimony of Commissioner Copps.

Testimony of Commissioner Adelstein.

Testimony (written statement) of Commissioner Tate.

Testimony of Commissioner McDowell.

Protecting Copyright and User Expectations: The Brave New World of Technology

Pamela Samuelson and Jason Schultz, University of California School of Law (Boalt Hall), have published "Should Copyright Holders Have to Give Notice About Their Use of Technical Protection Measures?" Here is the abstract.

Consumers expect to be able to do at least as much with digital content as they have been able to do with analog content, and more. Yet, some copyright owners are using technical protection measures to thwart certain consumer uses of digital content, and rarely do they give effective notice to consumers about these technical restrictions. This article identifies six types of consumer harms that have occurred from inadequate notice, including lack of expected interoperability, privacy invasions, security vulnerabilities, anti-competitive lock-out as to compatible systems, risks of inadvertent anti-circumvention liability, and unanticipated changing terms and discontinued service. It discusses a range of options for responding to the notice inadequacy problem, from trusting the market to substantive regulation that would forbid use of certain kinds of TPM restrictions (such as those that invade user privacy). Because the market has yet to yield effective notice to consumers of TPM restrictions, the article recommends that the Federal Trade Commission investigate the deployment of TPMs in digital content and make recommendations for standard notices that should be provided to consumers about the TPM restrictions.

Download the entire paper here from SSRN.

For Late Night Talk Show Audiences, Happy New Year

Late night talk shows, hosted by Conan O'Brien and Jay Leno, seem headed back to the studios, and David Letterman's show may follow suit, in spite of the writers' strike. The strike has put enormous pressure on these hosts to return to work, even though they may support the writers; hence the quasi-settlement. Here's more, from NPR.

Rethinking the Media Regulatory Framework in a Digital World

Mira Burri Nenova, World Trade Institute, University of Bern, has published "New Technologies, New Patterns of Consumer/Business Behavior and Their Implications for Audiovisual Media Regulation," as NCCR Trade Regulation Working Paper No. 2007/28. Here is the abstract.

Digital TV offers of 200 channels and 500 video-on-demand films, podcasting, mobile television, a new web blog being created every two seconds - these are some of the factual elements depicting contemporary audiovisual media in the digital environment. The present article looks into some of these technological advances and sketches their implications for the markets of media content, in particular as newly emerging patterns of consumer and business behavior are concerned. Ultimately, it puts forward the question of whether the existing audiovisual media regulatory models, which are still predominantly analogue-based, have been rendered obsolete by the transformed (and continually transforming) digital environment.

Download the entire paper from SSRN here.

Reaction to the FCC's Revision of Media Cross-Ownership Rules

The New York Times' Stephen Labaton has an article in today's paper about yesterday's FCC decision regarding new cross-ownership rules. Read it here.

FCC Revises Media Ownership Rules

The FCC passed revised media ownership rules today on a 3-2 vote, with the three Republican Commissioners voting in favor and the two Dems voting against the proposal. Companies may now own newspapers and tv or radio stations in the twenty largest markets. Read more here and here. The agency also approved permanent waivers for 42 companies. Read more here.

FCC Hearing to Consider New Rules on Cross-Media Ownership Today

The FCC hearing, at which the Commissioners are considering new rules concerning cross-media ownership, is going on now. CSPAN 3 is covering it here.

For Their Consideration

...Meanwhile, it looks as the Oscars and the Golden Globes will have to speak for themselves. The WGA has refused to allow striking members to write a word for those awards shows next year, assuming the work stoppage is still on. Read more here.

WGA Files NLRB Complaint

The Writers Guild of America has filed a complaint with the NLRB over the alleged bargaining behavior of the AMPTP. Here's a link to the complaint. The Hollywood Reporter Esq. has a post discussing this latest move in the continuing WGA strike.

Website Operator Granted Motion to Dismiss

The district court for the Northern District of West Virginia has dismissed a defamation lawsuit brought by a former Miss West Virginia, Allison Williams, against a website operator, Joseph Vitagliano, because the website operator lacked sufficient contacts with the state. The pageant contestant had alleged that the website had falsely linked her name and title to a pornographic tape "falsely depict[ing]" her "as a Virginia news reporter engaging in various graphic sex acts in a news van." She sued for defamation.

"Vitagliano is a citizen of the state of New York. He is the owner and developer of the website www.taxidrivermovie.com (“Taxi Driver”). Taxi Driver focuses on celebrity gossip and regularly features nude or semi-nude photographs of female celebrities. Taxi Driver also includes social, political and celebrity commentary that Vitagliano personally drafts and posts on a regular basis. There are multiple hyperlinks to other adult-oriented sites in the margins of the Taxi Driver website on which users may click if they so choose. Taxi Driver does not solicit sales, nor may visitors purchase products from the website or Vitagliano. The only income that Vitagliano generates from the website is the result of advertising arrangements he has with other online entities.

"As part of such an arrangement with the website www.juicybucks.com (“JuicyBucks”), Vitagliano agreed to host on the Taxi Driver website hyperlinks to products and services of JuicyBucks. Vitagliano, thus, posted advertisement hyperlinks provided by JuicyBucks that directed users to the JuicyBucks website and products. Vitagliano rotated the links on a daily basis to feature a different JuicyBucks product.

On March 6, 2005, Taxi Driver displayed an advertisement that stated “ALLISON WILLIAMS, Miss West Virginia and TV reporter [sic] gets banged in the camera truck!” The advertisement was in the form of a hyperlink that directed users to the JuicyBucks site where they could then purchase access to view the Sex Tape. Directly beneath the hyperlink advertisement on the Taxi Driver website was text that read “Posted by vit at March 6, 2005 at 9:52 AM.” For approximately two weeks, the Allison Williams Sex Tape advertisement was one of ten links to JuicyBucks video products that Vitagliano posted on Taxi Driver.

In addition to the content of the allegedly defamatory link, several other facts concerning both Taxi Driver's internal and external makeup are relevant to whether this Court has personal jurisdiction over Vitagliano. First, in addition to providing material for web users to read and view, Vitagliano allowed people who visited Taxi Driver to send him an e-mail or post comments directly to the website. The commenting function is a product of HTML and JavaScript code that Vitagliano included in Taxi Driver's internal html composition. This feature permits interested visitors to post their name, e-mail address, url and a comment directly to the site, thereby enabling other visitors to view the feedback. The code also provides an option so that users can opt for Vitagliano to “remember them.” The e-mailing function, which is independent of the commenting function, appears twice on the face of Taxi Driver, and each e-mail link is the product of an html code.

"Next, Vitagliano engaged in activities that are commonly used on websites to attract visitors and monitor traffic. Located at the bottom center of Taxi Driver was a link to the BLT Syndicate. The stated purposes of the BLT Syndicate are “(a) to combine members’ forums into one; (b) to promote each other's sites, [and] (c) to share traffic, content, and ad revenue.” Vitagliano also incorporated metatags into Taxi Driver's internal html code which are descriptive words and phrases used to help direct search engines when indexing a website. Between 2000 to October, 2006, Taxi Driver received 16,063,967 visits. This statistic is made available by the JavaScript enabled AddfreeStats, which Vitagliano included in his site.

Vitagliano claims he has never met Allison Williams and does not have significant family or personal contacts with West Virginia, does not regularly travel to West Virginia, and, in fact, has never physically entered the state. At a hearing on May 14, 2007, Vitagliano's counsel re-asserted his client's claim that the Court had no personal jurisdiction over him because Williams had proffered no evidence that he ever intended to or did enter West Virginia."

The parties agreed that Mr. Vitagliano did not have sufficient contacts with the state of West Virginia for the Court to exercise general jurisdistion over him. But Ms. Williams argued that under Zippo, Mr. Vitagliano had established sufficient contacts with the state for personal jurisdiction. However, the Court disagreed. "In this case, the parties’ jurisdictional discovery examined the level of activity on the website but did not bring to light any evidence of Vitagliano's actual contact with West Virginia users of the Internet. In fact, despite an extensive effort, Williams has been unable to establish even a prima facie showing that a West Virginian ever clicked on the Allison Williams hyperlink or even visited Taxi Driver. Since Taxi Driver was semi-interactive, the absence of actual contacts with West Virginia dooms any argument by Williams that this Court may exercise personal jurisdiction over Vitagliano because of his websites's electronic activity. The Court therefore concludes that Vitagliano did not direct electronic activity into West Virginia and lacks sufficient minimum contacts with the State such that he would have expected to be haled into court here."

The Court therefore dismissed Mr. Vitagliano from the case. "Under Fourth Circuit case law, the central jurisdictional inquiry in the Internet domain is purposeful availment. Given the plaintiff's failure to establish a prima facie case that Vitagliano purposefully availed himself of contacts in West Virginia, it would offend notions of fair play and substantial justice to hail him into court here. Therefore, the Court GRANTS Vitagliano's motion to dismiss for lack of personal jurisdiction and DISMISSES him from this case."

However, a number of other defendants remain.

The case is Williams v. Advertising Sex LLC,  2007 U.S. Dist. LEXIS 64858, 2007 WL 2570182, (N.D. W. Va., 2007).

Defamation as Celebrity in Australian Law

David Rolph, University of Sydney Faculty of Law, has published "Dirty Pictures: Defamation, Reputation, and Nudity," as 10 Law Text Culture 101 (2006). Here is the abstract.

The concept of reputation in defamation law has not been the subject of detailed academic analysis. The most comprehensive account of reputation in defamation law remains Robert C. Post's seminal article, 'The Social Foundations of Defamation Law: Reputation and the Constitution' (1986) 74 California Law Review 691. Post identifies at least three concepts of reputation in defamation law: reputation as property; reputation as honor; and reputation as dignity. This article seeks to apply Post's concepts of reputation to Australian defamation law. Through a case-study of two recent defamation cases, the high-profile litigation of Ettingshausen v Australian Consolidated Press and the comparatively little known case of Shepherd v. Walsh [2001] QSC 358, this article explores the concept of reputation in Australian defamation law. Although these two cases bear important similarities - both involve plaintiffs suing in respect of the publication of naked photographs they claimed exposed them to ridicule - the differences are more striking. This article argues that reputation can be understood as an economic and a social construct but should also be recognized as a media construct - reputation as celebrity.

Download the article from SSRN here.

Philly Anchor Arrested For Punching Cop

The AP reports that Alycia Lane, an anchor for Philadelphia's KYW-TV, a CBS affiliate, was arrested yesterday in Manhattan after she assaulted a New York police officer. Ms. Lane denies the charge. The officer was treated and released from a local hospital. Read more here in a New York Times story.