March 22, 2013
FCC Chair Genachowski To Step Down
Comment from the Blog of Legal Times on FCC Chair Julius Genachowski's announcement that he plans to leave the FCC.
FCC Chair Genachowski announced his plans to depart here. He said in part:
Over the past four years, we’ve focused the FCC on broadband, wired and
wireless, working to drive economic growth and improve the lives of all Americans.
And thanks to you, the Commission’s employees, we’ve taken big steps to build a
future where broadband is ubiquitous and bandwidth is abundant, where
innovation and investment are flourishing.
Statements from other commissioners on the Chair's departure are available below.
March 21, 2013
A Book On Digital Media and the Arab Spring
Philip N. Howard and Muzammil M. Hussain, Democracy's Fourth Wave? Digital Media and the Arab Spring
Here is the description from the publisher's website:
- Presents new causal theory of digital media and political change in the Arab Spring
- Includes unique digital data collected during and after the events and makes use of new fuzzy set methodology
- Incorporates fieldwork from Tunisia, Lebanon, Egypt, and other countries
"Democracy's Fourth Wave? guides readers through the avalanche of factors that meshed with digital media to produce the Arab Spring. The authors subtly adapt traditional methodologies to decode mysteries of complex causal effects. In doing so, their book brings clarity and insight to the conundrums of new technologies as factors in regime fragility and protest success."--Monroe E. Price, Annenberg School for Communication, University of Pennsylvania
"This unprecedented multidisciplinary approach to the examination of the Arab Spring situates itself in digital revolutions and political transformations. I highly recommend it for students, activists, and policy makers seeking to understand how modern communication technologies are driving the Fourth Wave of Democracy in the Arab world."--Imad Salamey, Associate Professor of Political Science, Lebanese American University
"This book represents the first serious effort to transcend the polarized debate between cyber-utopians and tech-skeptics regarding digital media's role in the 2011 Arab Uprisings. Carefully argued and documented, it is of landmark importance and should be required reading for all those who seek to understand the interface of technology and political change and the future of democratization."--Peter Mandaville, George Mason University, author of Global Political Islam
Product Details160 pages; 8 tables, 2 photographs, 5 graphs; 6-1/8 x 9-1/4;ISBN13: 978-0-19-993697-7ISBN10: 0-19-993697-8
The FCC and Its Indecency Regime
Lili Levi, University of Miami School of Law, has published 'Smut and Nothing But': The FCC, Indecency, and Regulatory Transformations in the Shadows. Here is the abstract.
For almost a century, American broadcasting has received a lesser degree of constitutional protection than the print medium. Although many of the FCC’s regulations in “the public interest” have been upheld against First Amendment challenge on the ground that broadcasting is exceptional, the traditional reasons given for such exceptionalism – scarcity and pervasiveness – have become increasingly careworn. Fighting that consensus, the FCC has aggressively pursued the regulation of indecency on radio and television since 2003. When the FCC’s enhanced indecency prohibitions swept up U2 front-man Bono’s fleeting expletive on a music awards show, broadcasters finally thought they had found a vehicle to force revolutionary changes to the second-class status of broadcast media. That was not to be. In a profoundly anti-climactic opinion issued on June 21, 2012, the Supreme Court in Fox Broadcasting Company v. FCC refused to address the First Amendment status of broadcasters. The Court’s silence speaks volumes. Although Fox specifically invited the Commission to consider its indecency regime in light of the public interest, its refusal to tackle the broader regulatory question implicitly suggests that a majority is not unduly troubled by continuing the exceptional regulatory treatment of broadcasting as a constitutional matter.
This is an important development because the FCC is currently facing 500,000 complaints about 5500 programs – many generated by and made into cause celèbres by conservative groups. This Article describes the ways – unnoticed by the Court – in which the indecency regime that will be used to resolve these cases constitutes a regulatory Trojan horse. In total, the doctrinal and justificatory changes amount to a sub rosa transformation in FCC regulation. The Commission has significantly extended its regulation of broadcast indecency both substantively and procedurally; recruited “voluntary” commitments by broadcasters to “zero tolerance” indecency regimes; and quietly transformed its articulated rationales for regulating indecency in order to permit extensive cultural regulation. Importantly, these developments have evaded judicial review.
The regulatory regime for indecency constitutes bad communications policy. The Commission’s approach puts at risk both the socially valuable public interest documentary programming of public radio and television, and the live local programming (of news and sports, for example) that serve to bolster community identity. Yet wholly deregulatory solutions are not politically viable. The remaining question, then, is how to promote a return by the FCC to a policy of restraint. Engaging in an exploration of the second-best, this Article makes three categories of suggestions in that spirit. First, the Commission should adopt a norm of proportionality in its forfeiture policies in order to reduce the chilling effect of indecency regulation on broadcasters. Second, the FCC should consider extensive institutional adjustments – including standards and processing changes – likely to improve the FCC’s record regarding indecency. Third, with a view to consumer empowerment, the Commission should explore methods designed to enhance public knowledge and transparency.
Download the paper from SSRN at the link.
FCC Commissioner McDowell Announces Plans To Step Down
FCC Commissioner Robert McDowell has announced his plans to resign his post. Here is his statement.
The following statement can be attributed to Commissioner Robert M. McDowell:
After nearly seven years of carrying out the incredibly high honor of serving the
American people at the FCC, it is time to turn more of my energies towards an
even higher calling: serving my family. After a great deal of deliberation, I have
decided that I will step down as a commissioner of the Federal Communications
Commission in a few weeks.
Today’s announcement is not a farewell. As you know, I don’t do well with
those, so let’s avoid all of that for now and tackle that challenge another day. I
will also save most of my expressions of appreciation for a later date. But I
would be remiss if I didn’t offer up some of the bigger thank-yous right away,
such as to: God, my parents, my beautiful bride Jennifer, our three amazing
children, as well as our large family-at-large, friends, all of my colleagues on the
Commission - both past and present, and the talented and dedicated public
servants throughout the FCC, especially all of the wonderful and tireless
professionals who have worked on my team in my office. Please keep in mind
that trying to make me look good day after day as we fought for freedom must
have been quite a challenge for them.
I would also like to thank the individuals who literally handed me this job, twice:
first and foremost, Senator Ted Stevens, President George W. Bush, Senator
Mitch McConnell and President Barack Obama, as well as many Members of
Congress. Thank you for placing such enormous trust in me.
Again, this is not a time for farewells, I’m just announcing my plans to step down
sometime soon. So what am I doing next? I will be talking to the FCC’s Chief
Ethics Officer, Patrick J. Carney, to make sure that my departure is in full
compliance with the letter and spirit of all of our ethics rules. Beyond that, I have
no plans other than to take my family on a much-needed vacation starting this
So until the farewells, as always, may God bless each of you and our great nation.
Here are lnks to statements from other commissioners on Commissioner McDowell's announcement.
March 20, 2013
Determining Agency Jurisdiction
Jonathan H. Adler, Case Western Reserve Law School, has published City of Arlington v. FCC: Questioning Agency Authority to Determine the Scope of Its Own Authority, in 7 Perspectives from FSF Scholars (No. 33) (November 2012). Here is the abstract.
In City of Arlington v. FCC the Supreme Court will consider whether courts should defer to an agency’s determination of its own jurisdiction. Although the need for courts to defer to agency interpretations of ambiguous statutory provisions under Chevron v. NRDC is well-established, the Supreme Court has never decided whether so-called Chevron deference should apply to statutory provisions delineating the scope of agency jurisdiction. There are several reasons courts should not confer Chevron deference to agency interpretations of statutes that define or limit an agency’s jurisdiction. First, the conferral of Chevron deference is premised upon the existence of agency jurisdiction. If there is no jurisdiction, there is no deference. So before a court can even consider whether an agency should receive deference for its statutory interpretation, it must first assure itself that agency jurisdiction exists. Granting Chevron deference to agency interpretations of their own jurisdiction also creates the risk of agency self-aggrandizement.
Download the article from SSRN at the link.
March 19, 2013
Planning Research and the Mass Media
Bent Flyvbjerg, Said Business School, University of Oxford, has published Why Mass Media Matter to Planning Research: The Case of Megaprojects, in Journal of Planning Education and Research 1 (2012). Here is the abstract.
This article asks how planning scholarship may effectively gain impact in planning practice through media exposure. In liberal democracies, the public sphere is dominated by mass media. Therefore, working with such media is a prerequisite for effective public impact of planning research. Using the example of megaproject planning, it is illustrated how so-called “phronetic planning research”, which explicitly incorporates in its methodology active and strategic collaboration with media, may be helpful in generating change in planning practice via the public sphere. Main lessons learned are as follows: (1) working with mass media is an extremely cost-effective way to increase the impact of planning scholarship on practice; (2) recent developments in information technology and social media have made impact via mass media even more effective; (3) research on “tension points”, that is, points of potential conflict, are particularly interesting to media and the public, and are especially likely to generate change in practice; and (4) tension points bite back; planning researchers should be prepared for, but not afraid of this.
Download the article from SSRN at the link.
Who's Media Now?
Sonja West, University of Georgia School of Law, has published Press Exceptionalism, as UGA Legal Studies Research Paper No. 2013-08. Here is the abstract.
Thanks to advances in mass communication technology, it is now easier and cheaper for all of us to share information with each other. This new ability allows us to act in ways that often seem “press-like.” We might, for example, tweet a warning to our friends about a traffic jam or blog about an upcoming election. Armed with nothing more than a smart phone or a laptop, each of us can share information about matters of public interest to a potentially broad audience in a timely manner — thus engaging in the very activities that were once considered the exclusive province of the press. Has modern technology, therefore, made us all “the press”?
The First Amendment protects “the freedom … of the press.” Many thoughtful legal observers have debated what that text means, how it might function differently from the freedom of speech, and whether it is possible to develop enforceable standards. In a prior article, I made the case that defining “the press” was both necessary and achievable. This article elaborates on that work in significant ways. I begin with the premise of press exceptionalism — that there naturally exists a subset of speakers who fulfill a distinctive role in our democracy. This limited group of speakers shares common attributes, most notably a proven devotion of time, resources and expertise to the tasks of informing the public on newsworthy matters and serving as a check on power. The challenge is identifying the members of this group and distinguishing them from “occasional public commentators” who at times use their speech rights in similar ways.
To be sure, it is no easy task to separate these two categories of speakers in the age of the Internet, blogging, smart phones and social media. Yet even as these technological advances blur the line between the press and everyone else, they also help to focus our analysis on the core constitutional characteristics that differentiate the press from other sorts of speakers. Such a purposive analysis points the way toward identifying the subgroup of communicators who, if empowered with rights beyond those granted by the Speech Clause, will most often and most effectively use those rights to benefit society as a whole. The goal of this article, therefore, is to offer a workable framework in our search for “the press” for First Amendment purposes in the Internet age.
Download the paper from SSRN at the link.
Child Porn Statutes, Legal Sexual Activity, and the Constitution
Jon Still has published his Comment, Old Enough to Have Sex, but Too Young to Film It: Are Prosecutors Violating Constitutional Rights by Prosecuting Legal Sexual Activity under Child Pornography Statutes? Here is the abstract.
Are prosecutors violating individuals’ constitutional rights by prosecuting legal sexual activity under child pornography statutes? While many are under the impression that child pornography falls into the category of “unprotected free speech,” I argue that, based on the Supreme Court's holding in U.S. v. Stevens, 130 S.Ct. 1577 (2010), child pornography is not a category of unprotected free speech but falls under the category of “speech integral to criminal conduct.”
Meaning, the speech – depiction of sexual activity – must be integral to criminal conduct. Based on the Supreme Court’s holding in New York v. Ferber, 458 U.S. 747 (1982), child abuse is the criminal conduct that child pornography is integral. The focus of this comment is the filming of legal sexual activity that meets state statutes’ definition of child pornography.
A number of states have a gap between the legal age of consent and the age at which constitutes child pornography. This gap allows individuals to perform sexual activity, but if the individuals film the sexual activity, they will be violating child pornography statutes. I suggest that the depictions of this legal sexual activity do not meet the definition of child pornography as discussed by the Supreme Court in Ferber, since the depictions are not integral to the abuse of children.