Saturday, April 3, 2010
The Second Circuit has denied a cable systems operator's challenge to an FCC order that it carry a station pursuant to the Cable Television Consumer Protection and Competition Act. The cable systems operator alleged that the order violated the operator's free speech rights and involved a regulatory takings in violation of the First and Fifth Amendments.
An administrative agency has a duty to explain its ultimate action. ...However, it need not explain each and every step leading to this decision; it is enough "if the agency's path may reasonably be discerned." ...Here, the reason for the FCC's decision to affirm the Media Bureau's order is perfectly clear: it agreed with the reasoning of the Bureau in most respects and disagreed in certain others, but only in ways that strengthened the validity of the Bureau's decision. In such circumstances, we will not require the FCC to sift through each piece of evidence offered by a party and explain why it is more or less compelling than the counter-evidence put forth by an opponent.
The fact that we review agency fact-finding for "substantial evidence" supports our conclusion that the FCC's explanation was adequate. To determine whether substantial evidence supports a finding, we need ask only whether "a reasonable mind might accept [it] as adequate" support. ...Here, the agency found WRNN's evidence that it had significant Long Island-targeted programming to be more persuasive than Cablevision's evidence to the contrary. We need not know the agency's precise rationale in order to conclude that it was reasonable for the agency to so find. While such an explanation might have aided our reasonableness inquiry, it is not indispensable.
Both sides offered evidence regarding WRNN's programming content. According to Cablevision, its evidence showed that WRNN broadcast less than an hour of programming covering "Long Island issues" in a "representative week." Cablevision Br. at 33. WRNN pointed to evidence that it had aired over 4000 Long Island-related items between June and November 2005. It would be reasonable for the agency to resolve this conflicting evidence in favor of WRNN and to conclude (as it obviously did) that Cablevision failed to include some programming that should properly be considered as local to Long Island, or that its sample week was not actually representative. Thus, substantial evidence supports the FCC's finding on this factor.
We note that the Bureau, on its initial consideration of this petition, made a contrary finding as to this factor. This fact, however, does not alter our assessment of the FCC's ultimate determination. "An agency conclusion may be supported by substantial evidence even though a plausible alternative interpretation of the evidence would support a contrary view." ...questions of fact, our task on review is not to "displace [the agency's final] choice between two fairly conflicting views." ...
After the Bureau issued its 2006 Order, but before the FCC affirmed it, Verizon began carrying WRNN on its FiOS system to areas of Nassau and Suffolk Counties. ... FCC concluded that this "overlapping carriage provides support for WRNN-DT with respect to the historic carriage factor."... In a single paragraph in its brief, Cablevision argues that this analysis is "contrary to clear statutory language" because "[c]arriage initiated in the past few months does not constitute historical carriage." Cablevision Br. at 36-37.
Cablevision, however, fails to supply a contrary, "correct" definition of "historically carried," and does not discuss whether we should defer to the Bureau's interpretation of the term, in accordance with Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984), as we did with the must-carry statute generally in WLNY-TV, Inc. v. FCC, 163 F.3d at 142. Even if Cablevision could demonstrate error in the sense that the Verizon carriage was not "historical," they have failed to show why such error would warrant vacatur given that (1) Cablevision does not contest the propriety of considering Verizon's carriage as an unenumerated, non-statutory factor, and (2) the Bureau decided to order carriage despite its belief that WRNN had not been "historically carried" in the relevant communities. Accordingly, we decline to vacate the FCC's order based on this asserted error in the FCC's analysis of the historical carriage factor.
Cablevision also alleges error in the FCC's treatment of the two remaining statutory factors. In the instant order, the FCC stated that Congress did not intend "the 'coverage by other qualified stations' factor to bar a request for extending a station's market when other stations could be shown to serve the communities at issue." ... In essence, then, the FCC decided to give the factor significant weight when a lack of coverage by other stations favored including a community in a station's market, but to discount its importance when the existence of coverage arguably cut against inclusion. Cablevision argues that this decision "is directly contrary to . . . the statutory text." Cablevision Br. at 40. This argument is unavailing. The text of the statute directs the agency to consider a number of factors, and it is clear from the opinion that both the FCC and the Bureau did consider this factor. Upon doing so, the FCC saw no reason to depart from its normal policy, which is to discount the "other stations' coverage" factor when it tends to cut against inclusion. Unsurprisingly, Cablevision cites no decision of this court vacating a decision because we disagree with an agency's weighing of a statutory factor. The law is to the contrary.
The market modification provision of the must-carry statute provides that the FCC may add or remove communities from a local broadcast station's market "to better effectuate the purposes of this section." Cablevision argues that the FCC's inclusion of the Long Island communities in WRNN's market contravened the purposes of must-carry in two ways. First, expanding WRNN's market in fact frustrates the goal of "localism" by necessarily decreasing programming relevant to the community WRNN has traditionally served (the Kingston community). And second, rewarding WRNN's actions with broader must-carry rights encourages gamesmanship which frustrates the purpose of must-carry, which is to preserve, but not expand, a broadcast station's market. We reject the first argument because it incorrectly presumes that WRNN cannot increase Long Island-targeted programming without decreasing Kingston-targeted programming. We reject the second because it rests on a conception of the statute's purpose that is overly narrow, unsupported by precedent, and contrary to the language of the statute.
According to Cablevision, the FCC's decision defeats the purposes of the must-carry statute because "[a]ny targeting of other spokes [i.e., communities that are remote from 'a DMA's metropolitan center'] necessarily comes at the expense of the station's community of license." Cablevision Br. at 43. This argument rests on the false premise that WRNN's programming consists entirely of either Kingston-specific programming or Long Island-specific programming. As Cablevision reminds us elsewhere, however, a great deal of WRNN's content is "home-shopping" programming that targets neither Kingston nor Long Island specifically. See Cablevision Br. at 33 (claiming that 78% of WRNN programming in a representative week "consisted of home shopping and infomercials"). It is entirely possible, and Cablevision does not suggest otherwise, that WRNN could increase its Long Island-targeted programming by decreasing its home-shopping programming, leaving its Kingston-targeted programming unaffected. And to the extent that a Kingston viewer might prefer certain home-shopping programming to programming concerning Long Island, we do not see how frustrating that preference undermines localism.
Essentially, Cablevision's claim is that, as a matter of law, a cable company in a community that is outside a "DMA's metropolitan center," such as Long Island, should not be required to carry a station based in a different community that is also remote from the center, such as Kingston: in Cablevision's parlance, a "spoke" cable company should not be required to carry a station based in a different spoke. Congress, however, did not share that view, and, as the FCC points out, the default rule is that WRNN must be carried by cable operators throughout the New York City DMA.
Cablevision also contends that the FCC's decision rewards "gamesmanship" because WRNN moved its transmitter and changed its programming simply to obtain must-carry privileges in other communities. Cablevision Br. at 46. In other words, they suggest that the FCC cannot award WRNN a regulatory benefit if WRNN has changed its conduct in an attempt to receive that benefit. This rule, applied universally, would run counter to a central premise of the regulatory scheme that a regulated entity will change its conduct in socially desirable ways to achieve a regulatory benefit. Accordingly, we reject it.
Cablevision also argues that any decision that increases a station's market is contrary to the purpose of the statute, because the purpose is "to return broadcasters to their 'natural market,'" Cablevision Br. at 47; thus, any FCC action which augments a broadcaster's market contravenes this purpose. The purpose of the statute, however, is not to "preserve" a group of broadcast stations, or a particular conception of a station's market, but, inter alia, to "preserv[e] the benefits of free, over-the-air television," and "promot[e] the widespread dissemination of information from a multiplicity of sources." ...We do not think that these purposes are served only by granting broadcasters the minimum must-carry coverage necessary for survival; or that these purposes are frustrated by actions which result in a station's greater prosperity. Accordingly, we conclude that the FCC did not violate the statutory admonition that market modifications should be made "to better effectuate the purposes of this section." ...The remainder of Cablevision's arguments on this point fail to persuade us otherwise.
As a threshold matter, a party alleging violation of its First Amendment rights must show that the challenged government action actually regulates protected speech. Thus, in Turner I, the Court found it necessary to establish, as an "initial premise," that "[c]able programmers and cable operators engage in and transmit speech," and that "the must-carry rules," in general, "regulate cable speech." Similarly, Cablevision here must articulate how the FCC's order "interferes with [its] speech rights."...
This threshold requirement serves two interrelated functions. Identifying the "burden" imposed by government action enables a court to undertake heightened scrutiny analysis: without understanding how a regulation burdens speech, a court cannot decide whether that burden is "no greater than is essential" to further the goals of the regulation in question. ...And the failure to identify the burden has an even more fundamental consequence: without a plausible allegation that the offensive conduct interferes with First Amendment rights or, put differently, that the interaction between government and citizen "bring[s] into play the First Amendment," ...a reviewing court has neither a reason nor the ability to subject the conduct of the governmental actor to heightened scrutiny.
Cablevision raises a similar, but not identical, First Amendment challenge to that raised in Turner I and Turner II. Cablevision presents an as-applied First Amendment challenge to the FCC's order modifying the market of WRNN, pursuant to the provision of the must-carry statute on market determinations, 47 U.S.C. § 534(h)(1)(C)(ii). The challenged order threatens the First Amendment interest of Cablevision in a similar manner to that described in Turner I and Turner II. The order reduces the number of channels over which Cablevision exercises editorial control by forcing it to carry WRNN, see Turner II, 520 U.S. at 213, and it also makes it more difficult for the cable programming arm of Cablevision to compete for carriage on the remaining channels, id.
In order to apply the appropriate level of scrutiny, we must first determine whether the order is content based or content neutral. ...
The Turner I Court explicitly rejected the argument that "the must-carry regulations are content based because Congress' purpose in enacting them was to promote speech of a favored content." ...
However, we think the order before us now is content neutral. WRNN's presumptive DMA would have included Nassau and Suffolk counties. It was Cablevision that first invoked the market modification provision to exclude these counties from WRNN's market. It succeeded based on the FCC's concern, in part, that WRNN lacked a Grade B contour reaching Long Island. When WRNN, after expanding its Grade B contour, returned to the FCC seeking restoration of its presumptive DMA, Cablevision argued that the station had failed to demonstrate that the various factors outlined in the market modification provision, including the local programming factor, weighed in WRNN's favor. The Bureau and the FCC reached different conclusions on this factor, yet both agreed that the totality of circumstances no longer justified excluding Long Island communities from WRNN's presumptive DMA. The FCC considered the amount of local programming provided by WRNN only in this context, i.e., in assessing the continued need to restrict a presumptive market defined solely by geography. Moreover, WRNN's local programming was an inconsequential factor in the FCC's ultimate decision. Additionally, Cablevision has not alleged, much less proven, that the restoration of the Long Island communities to WRNN's market under these circumstances was based on some illicit content-based motive. We conclude, therefore, that the order is content neutral and deserving of intermediate scrutiny.
We have no trouble in concluding that the order "advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further these interests." The burden imposed by the order - the loss of control over one channel - is no greater than necessary to further the government's interest in preserving a single broadcast channel it found serves the local community.
Thursday, April 1, 2010
Simon Singh has prevailed in an appeal in the libel case brought against him by the British Chiropractic Association, although his defense has cost him an alarming two hundred thousand pounds. In a unanimous decision, a three judge appellate court ruled that the lower court judge, Mr. Justice Eady had "erred in his approach" when he decided that Mr. Singh could not use the defense of "fair comment" in defending himself against the defamation charge brought by the BCA that statements he made about some chiropractic claims were opinion rather than fact. Mr. Justice Eady determined instead that they were statements of fact.
Wednesday, March 31, 2010
Broadband is widely recognized as a key platform for enabling and supporting job creation, economic development, and innovation in both the short- and long-terms. Many recent policy debates have focused on spurring the deployment of wired broadband networks to unserved parts of the country. While important, these discussions largely overlook the vital role that wireless broadband is playing and will continue to play in delivering critical services and applications to a variety of end-users. This article analyzes the current state of the marketplace and assesses how a variety of sectors of the economy - healthcare, energy, education, and public safety - are leveraging ubiquitous and robust wireless broadband networks to deliver cutting-edge new tools. In order to sustain such high levels of innovation and competition, innovators will require additional spectrum resources to ensure that wireless networks are reliable and capable of providing fast transmission speeds. As such, this article provides an analysis of how the Federal Communications Commission has historically apportioned spectrum and draws best practices for use in today’s marketplace. In an effort to prevent a spectrum shortage and provide policymakers with guidance as they approach these issues, this article concludes by articulating a series of recommendations for use by policymakers. Combined with the best practices, these policy recommendations seek to ensure meaningful policy making as stakeholders aim to position the wireless sector for continued success.
Internet and generally modern communication technologies have radically modified current society, bringing in new risks for citizens’ privacy. The tangible effects of such technological progress have been, on the one hand, the improvements of tools for retrieval and collection of data, and, on the other hand, the increased capability of storage and aggregation of collected information. This can be interpreted positively in terms of much greater and better opportunities for the development of personality, making available information previously inaccessible (due to high cost or efforts needed to access). However, the same technical tools can be used to achieve the opposite result: prevent the expression of users’ personality through a continuous, though imperceptible, control that could shift the interpretation of user profiles from a pre-judgment into a prejudice.
From a legal point of view, different solutions have been put forward, descending from different approaches. On the one hand, we can observe the case of self-regulation, where technology itself can help to limit the aforementioned risks for personal data; on the other hand, we can take the example of legislative harmonization implemented by the Member States in the EU, where the monitoring activity is carried out by independent authorities, the so called Data protection Authorities.
A recent example that can show the market dynamics and the legal reactions concerning data protection, is the search engine Google, which received a brief but significant letter from the Art 29 Working Party (hereinafter Art 29 WP)11 due to the low level of protection assured by the Mountain-view society in the delivery of its services. The intervention, though not binding, has been the first step for Google in the direction of an improvement of its data protection policy, so as to achieve the level required by European legislation.
Download the paper from SSRN at the link.
Monday, March 29, 2010
In the course of implementing the EC Copyright Directive, the Dutch legislator decided to maintain a closed system of carefully-defined copyright limitations. This decision, on the one hand, reduces flexibility in the field of limitations when compared with open systems resting on a set of abstract factors, such as the US fair use doctrine. On the other hand, it may be expected to outweigh the disadvantage of slow legislative reactions to rapid technological change by enhancing legal certainty. With Dutch courts invoking the EC three-step test to supersede the detailed domestic rules governing limitations, however, the alleged advantage of enhanced legal certainty can no longer be realized. In consequence, the Dutch limitation infrastructure is in a lamentable state. It provides neither sufficient flexibility nor sufficient legal certainty. Hence, the time is ripe to reconsider the option of introducing a fair use clause that would offer at least more flexibility.
Download the article from SSRN at the link.
A newspaper company creates a workplace communications systems policy that prohibits use of its e-mail for non-job-related or outside solicitations and then disciplines an employee who sends several union-related e-mails to employees. The employer permits other personal uses of its e-mail system. In the last day of then Chairman Battista’s tenure at the National Labor Relations Board, a deeply divided Board ruled the employer has a right to regulate and restrict the use of its property. The dissent, authored by now Chairman Wilma Liebman, compared the majority’s perspective and the agency itself to ‘Rip Van Winkle’ because it overlooked the transforming effect of e-mail on the workplace. The United States Court of Appeals for the District of Columbia Circuit overturned the Board’s decision finding that the Register-Guard unlawfully disciplined a union steward for her e-mails when the newspaper discriminatorily enforced its no-solicitation rule. The article suggests how the NLRB should handle the Register-Guard case upon remand. The Board’s decision on employer e-mail policies affects the parameters of NLRA section 7 rights for all private sector employees, not just those represented by unions. This article assesses the legality of workplace communication systems policies that permit non-business uses of communications systems yet prohibit concerted activity and/or union-related communications.