Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, January 30, 2009

The Public Interest in Protecting Confidential Sources

David M. Abramowicz has published "Calculating the Public Interest in Protecting Journalists' Confidential Sources," at 108 Columbia Law Review 1949 (2008). Here is the abstract.

Most federal circuits recognize a qualified journalist's privilege not to identify a confidential source. In shielding journalists from some subpoenas, those courts recognize, at least implicitly, a public interest in newsgathering sufficient to overcome its interest in obtaining evidence. But courts pay little attention to the nature or scope of the newsgathering interest. They treat it as fixed, an approach that overlooks the reality that certain uses of confidential sources benefit the public more than others. Some judges and commentators have called for a flexible approach toward measuring the newsgathering interest, but their proposals, which rely on an analysis of the value of a confidential source's information, would yield unpredictable results. These proposals have not gained traction.

This Note identifies, for the first time, a procedural analysis, based on guidelines recently championed by journalists and media organizations, that can be used to calculate the newsgathering interest. The new guidelines govern the process by which journalists obtain and report information from confidential sources. The Note argues that courts should afford more or less weight to the newsgathering interest based on whether a journalist's use of information from a confidential source adhered to the guidelines. This approach would align the journalist's privilege with the public interest without requiring a subjective assessment of information's news value. Furthermore, focusing the relevant inquiry on the process by which information flowed from a confidential source to the public would solve the problem of defining who is a "journalist" entitled to invoke the privilege.

Download the article from SSRN here.

January 30, 2009 | Permalink | TrackBack (0)

Thursday, January 29, 2009

Actress Nancy Cartwright Uses "Bart Simpson" Voice in Scientology Ad

Nancy Cartwright, who voices "Bart Simpson" on the Fox hit "The Simpsons," may be in trouble with the show's producers over a recorded call she made for the Church of Scientology. While she identifies herself as "Nancy Cartwright" after first saying she's "Bart Simpson," Fox may argue that she's using the property of the show to promote the Church's cause. She may also violate her contract with Fox. Read more here in a Hollywood Reporter story (a link takes you to the recorded call so you can hear the message for yourself).

January 29, 2009 | Permalink | TrackBack (2)

ASA Finds Ad Does Not Promote Bullying

The Advertising Standards Authority has rejected complaints that a "Beat that Quote" advertisement promotes workplace harassment.

Online financial comparison service's TV ad opened with a fully dressed office supervisor and hairy, shirtless male employees seeking better internet deals than competitors.

The commercial, by ad agency Leagas Delaney, showed the supervisor pulling wax strips from employees' backs when he felt they could have found better deals for the Beat That Quote service. The ad closed with the boss pulling wax strips off employees even if they managed to find the best deals.

The ASA found that Ltd (BeatThatQuote) said they used exaggeration and absurdity to illustrate the key theme of their advertising; finding a better price.  They said the scenes in the ad were comical and included an exaggerated depiction of a commonplace activity; body hair removal.  They said adults would know that removing a wax strip was a quick process, which normally caused a person to wince, but was over quickly and left no after-effects.  They did not feel that the scenes showing wax strip removal, when combined with the comic and surreal feel of the ad, depicted an offensive level of violence or encouraged bullying.  They said the staff members did not appear in distress, victimised or bullied and stated that the Code generally accepted theatrical violence in a stylised cartoon or slapstick quality. 

Clearcast said they worked very closely with the ad agency to clear a final version that would not cause offence, harm or distress.  They did not consider that the ad condoned, trivialised or encouraged workplace bullying or violence.  They felt the semi-clothed, male-only workforce created an immediate comedic effect and that the action within the ad was clearly absurd.  They stated that while the men showed some discomfort when the wax strips were pulled off, none of them looked genuinely in distress, victimised or bullied.  They considered most viewers would see the ad in the surreal and comic spirit it was intended. 

3. BeatThatQuote did not believe that children who saw the ad would think that a scene featuring half-naked men and wearing cloth strips represented typical workplace activity and pointed out that the ad carried an ex-kids restriction to minimise any difficulties.

Clearcast said they had some concerns that the ad should not be seen by very young viewers, because they did not want younger, unsophisticated viewers to think this was a normal workplace.  They therefore gave the ad an 'ex-kids' timing restriction to minimise the risk of children seeing it. 

4. BeatThatQuote pointed out that the office was not a call centre, because there was no telephone-related activity of any kind, but nonetheless felt that the ad did not mock or degrade any particular category of employee, because of the unreal and bizarre scenario depicted.   

Clearcast stated the ad did not refer to call centre employees.  They said the office portrayed was nonsensical and the employees were hard working, although they were being motivated in a very unusual way.  They did not believe that most viewers would think that working in a call centre was being mocked or degraded at any time.

1. Not upheld
The ASA recognised that bullying was a sensitive issue. We noted, however, that the ad was in keeping with previous BeatThatQuote campaigns which featured bizarre office-based scenarios, where everyday activities were exaggerated to create a surreal environment. We noted that, while the employees winced in an exaggerated manner when the wax strips were removed, they did not appear generally unhappy or frightened and intimidated by their supervisor, but appeared keen to provide better quotes.

Because the action in the ad was exaggerated and portrayed in a surreal context, we considered that the ad was unlikely to be seen to trivialise, condone or encourage bullying.

On this point, we investigated the ad under CAP (Broadcast) TV Advertising Standards Code rules 6.1, 6.2, 6.7 (Harm and offence), 7.4.1, 7.4.3 and 7.4.7 (Harm and distress) but did not find it in breach.

2. Not upheld
We noted that waxing was an activity with which most people would be familiar and while we noted that it could be a momentarily painful process to some and might cause someone to wince, we acknowledged that the pain was temporary and did not leave any lasting damage. We noted that the ad exaggerated the effects of being waxed; the employees' exaggerated vocal reactions to the process and the newly-waxed skin was shown to be pinker than would usually be the case. We acknowledged that the employees did not appear to be in the office against their will or in serious distress and that the action of motivating employees by waxing their backs was intended to be humorous.

While we acknowledged that the ad might be not be to some viewers' taste, we concluded that most people would not find the ad offensive or consider that it condoned violence and physical abuse.

On this point, we investigated the ad under CAP (Broadcast) TV Advertising Standards Code rules 6.1, 6.2, 6.7 (Harm and offence), 7.4.1, 7.4.3 and 7.4.7 (Harm and distress) but did not find it in breach.

3. Not upheld
We acknowledged that the ad had an ex-kids restriction to ensure it was not broadcast around programmes of particular appeal to children and that young children were therefore unlikely to see the ad unsupervised. We were not made aware of any particular instances of children seeking to emulate the ad. We also noted that the office was populated by semi-clothed male only staff and considered that older children would understand that this was not a typical office scene and that the action in the ad was likely to be seen as comedic rather than threatening. We acknowledged some parents were concerned their young children might be disturbed by the scenes of the wax strips being removed, but considered young children were unlikely to be watching without an adult present. We considered that the actors' reactions were exaggerated and had a slapstick quality and that the overall darkly humorous tone of the ad was likely to be apparent to all but the very young.

Because the ad was unlikely to be seen by unsupervised very young children and because we considered older children would understand that the ad did not depict a normal office environment, we concluded that the timing restriction was sufficient and the ad was unlikely to cause serious harm to children.

On this point, we investigated the ad under CAP (Broadcast) TV Advertising Standards Code rules 6.1, 6.2, 6.7 (Harm and offence), 7.4.1, 7.4.3, 7.4.7 (Harm and distress) and CAP (Broadcast) Rules on the Scheduling of Advertising rule 4.2.3 (Treatments unsuitable for children) but did not find it in breach.

4. Not upheld
We acknowledged that the ad was not set in a call centre, but noted it was set in an office environment. We considered, however, that the office depicted would not be viewed as a typical workplace. Because of that we concluded that most viewers would not take the action in the ad seriously, or believe that it implied that staff in call centres were being mocked or degraded.

On this point, we investigated the ad under CAP (Broadcast) TV Advertising Standards Code rules 6.1, 6.2, 6.7 (Harm and offence), 7.4.1, 7.4.3 and 7.4.7 (Harm and Distress) but did not find it in breach.

January 29, 2009 | Permalink | TrackBack (0)

Tommy Sheridan Faces Perjury Charges Over News of the World Lawsuit

Former socialist MP Tommy Sheridan and his wife are facing charges that they perjured themselves during a 2006 defamation lawsuit against News of the World. The paper had alleged that Mr. Sheridan had had affairs and participated in orgies. He won two hundred thousand pounds in damages. NOTW appealed, then suspended it pending the government's perjury investigation.

January 29, 2009 | Permalink | TrackBack (2)

Press Complaints Commission Investigates Sun Story on "Terror Target"

The Press Complaints Commission is investigating a Sun story that claimed that Sir Alan Sugar, host of the British version of The Apprentice, and other prominent Jews, are "terror targets" of Islamic militants. Claims have now emerged that the story is not based on credible sources, and the Sun has removed it from its website. Read more here in a Guardian story.

January 29, 2009 | Permalink | TrackBack (2)

BBC Director General To Meet With Staff Concerning Gaza Appeal Broadcast

BBC Director General Mark Thompson will meet with members of network staff concerning the decision not to air the Gaza appeal. Other networks are airing it, and the National Union of Journalists is in support of broadcasting it.

January 29, 2009 | Permalink | TrackBack (0)

Landis Sues Jackson Over "Thriller"

John Landis (An American Werewolf in London, The Twilight Zone) is suing pop star Michael Jackson over profits Mr. Landis alleges he is due as his share of the video "Thriller." Mr. Landis says he hasn't received profits from the video for at least four years, and that Mr. Jackson has licensed works based on "Thriller" without Mr. Landis's consent. Here's more from the Washington Post.

January 29, 2009 | Permalink | TrackBack (1)

Injury On Set of "Harry Potter" Film

An accident on the set of "Harry Potter and the Deathly Hallows" has left one man, believed to be a member of the stunt crew, injured. He was admitted to a local hospital. Read more here.

January 29, 2009 | Permalink | TrackBack (7)

Digital Britain: An Interim Report

The plan for Britain is a move toward wired homes with full broadband, according to a newly released report prepared for Parliament. Here's a link to the full report, which covers such issues as public broadcasting, internet piracy, mobile services, and internet safety.

January 29, 2009 | Permalink | TrackBack (0)

SAG, AMPTP Will Meet Next Week

From the Hollywood Reporter: the Screen Actors Guild and the Alliance of Motion Picture and Television Producers are meeting early next week to try to bring their long-running dispute to an end. The two groups will negotiate at the AMPTP offices in Sherman Oaks beginning February 3rd, according to announcements on the SAG and AMPTP websites.

January 29, 2009 | Permalink | TrackBack (0)

Wednesday, January 28, 2009

Public Sector Blogging

Paul M. Secunda, Marquette University Law School, has published "Blogging While (Publicly) Employed: Some First Amendment Implications," in volume 47 of the University of Louisville Law Review (2009). Here is the abstract.
While private-sector employees do not have First Amendment free speech protection for their blogging activities relating to the workplace, public employees may enjoy some measure of protection depending on the nature of their blogging activity. The essential difference between these types of employment stems from the presence of state action in the public employment context. Although a government employee does not have the same protection from governmental speech infringement as citizens do under the First Amendment, a long line of cases under Pickering v. Bd. of Education have established a modicum of protection, especially when the public employee blogging is off-duty and the blog post does not concern work-related matters.

Describing the legal protection for such public employee bloggers is an important project as many employers recently have ratcheted up their efforts to limit or ban employee blogging activities while blogging by employees simultaneously continues to expand. It should therefore not be surprising that the act of being fired for blogging about one's employer has even led to a term being coined: "dooced." So the specific question that this essay addresses is: do dooced employees have any First Amendment protection in the workplace? But the larger issue examined by implication, and the one addressed by this Symposium, is the continuing impact of technology on First Amendment free speech rights at the beginning of the 21st Century.

This contribution to the Symposium proceeds in three parts. It first examines the predicament of private-sector employees who choose to blog about their workplaces. The second section then lays out the potential First Amendment free speech implications for public employees who engage in the same types of activities. Finally, the third section briefly considers a potential future trend in this context from Kentucky involving government employers banning employee access to all blogs while at work.
Download the paper from SSRN.

January 28, 2009 | Permalink | TrackBack (0)

Stan Lee, Originator of "Spiderman," Sued Over Profits

Shareholders in Stan Lee's company are suing him over profits they think are due from film and book sales. Mr. Lee is the originator of "Spiderman;" he sued Marvel Comics in 2002 (Lee v. Marvel Comics, 386 F. Supp. 2d 235; 2005 U.S. Dist. LEXIS 587) and settled with Marvel in 2005.

January 28, 2009 | Permalink | TrackBack (1)

Some BBC Employees May Strike

BBC World Service employees working in its South Asian section may strike over possible job cutbacks, says the National Union of Journalists. A vote may come soon.

January 28, 2009 | Permalink | TrackBack (0)

Economist Not Distributed In Thailand

The publisher of the leading financial magazine The Economist decided not to distribute it in Thailand for the second time in two months because of concerns that material included in the current issue might run afoul of the country's lese-majeste law. Read more in a Guardian article.

January 28, 2009 | Permalink | TrackBack (0)

Why The RIAA Has Changed Its Strategy

Tracy Mitrano explains why she thinks the RIAA has dropped all those piracy lawsuits against college students. It's not just because the association is nice.

January 28, 2009 | Permalink | TrackBack (2)

House Prepares To Vote On Digital Switchover Delay

From here's more on the likely delay in the digital switchover.

January 28, 2009 | Permalink | TrackBack (3)

Tuesday, January 27, 2009

Yo Espero Ahora Mucho Dinero

That little Taco Bell chihuahua is worth millions--$42 millions--to Joseph Shields and Thomas Rinks, of the Wrench agency, who dreamed up the idea in a phenomenally successful marketing campaign for Taco Bell some years ago. But the chain took the idea to another agency and after it lost a lawsuit to Mr. Shields and Mr. Rinks, tried to sue that agency, TBWA Chiat\Day, to make it liable. But the 9th Circuit found Taco Bell solely liable for the breach.

Considering these instructions to the Wrench jury, no inference of fault by TBWA can be drawn from the jury's verdict. The instructions leave unclear what the Wrench jury determined on the issue of independent creation of the Chihuahua character. The jury was told to consider "whether Taco Bell and [TBWA] created the Taco Bell Chihuahua on an independent creative, but parallel path." The court also asked the jury to consider "the access or lack thereof to the Psycho Chihuahua character by people at Taco Bell and [TBWA]. " The Wrench jury was never instructed to differentiate between Taco Bell and TBWA or determine which party was at fault for the liability to Wrench.

The undisputed facts do not support a finding of fault or negligence on the part of TBWA. TBWA was not a party to the implied contract between Taco Bell and Wrench and was unaware of its existence. TBWA had no knowledge of Psycho Chihuahua nor Taco Bell's contact with Wrench before proposing a Chihuahua character for Taco Bell advertising on June 2, 1997. The facts that Taco Bell did not have input on TBWA's creation of its advertising character and that a box of Psycho Chihuahua materials was sent to TBWA are of no consequence not only because TBWA created its own Chihuahua character before it received the Psycho Chihuahua materials, but also because Taco Bell was found liable for the use of Psycho Chihuahua without compensating Wrench, not copyright infringement. Taco Bell's arguments speak to copyright issues not pertinent to this case because those claims were disposed of before trial.

The Agency Agreement's indemnification provisions require TBWA to indemnify Taco Bell for liability incurred as a result of "(i) any materials created, produced, and/or furnished by [TBWA] for [Taco Bell] . . . (ii) [TBWA's] fault or negligence in the performance of its obligations hereunder; or (iii) [TBWA's] breach of its obligations under this Agreement." Even if liability arose from "materials created, produced, and/or furnished by [TBWA] for [Taco Bell]," Paragraph 7.1 includes an exception for claims covered by Paragraph 7.2, claims resulting from Taco Bell's fault. Although Taco Bell argues the Wrench jury finding warrants an inference that TBWA misappropriated Wrench's material, neither the verdict nor the undisputed facts allow a finding of TBWA's fault, but only Taco Bell's breach of a contract. The district court properly determined no obligation for TBWA to indemnify Taco Bell under the Agency Agreement arose from the verdict.


The next issue we consider is whether TBWA is at fault for breach of the Agency Agreement, leading to Taco Bell's liability in Wrench. Subparagraph 7.2(iii) provides that Taco Bell will indemnify TBWA for any liability resulting from "risks which have been brought to the attention of and discussed with [Taco Bell] and [Taco Bell] has nevertheless elected to proceed as evidenced in writing and signed by either the Vice President of Advertising or Senior Vice President - Marketing of [Taco Bell]."

Taco Bell argues that the district court ignored material evidence of TBWA's breach of its obligations under Paragraph 7 to "exercise its best judgment in the preparation and placing of [Taco Bell's] advertising and publicity with a view to avoiding any claims, proceedings, or suits being made or instituted against Taco Bell." It is Taco Bell's position that it was TBWA's responsibility to make sure Taco Bell's advertising campaign did not misuse Psycho Chihuahua and TBWA breached its duty when it failed to do advertising copy clearance, uncover an application for a trademark, and bring risks of using a Chihuahua in advertising to Taco Bell's attention.

Subparagraph 7.2(iii), speaking to Taco Bell's indemnification obligations to TBWA, does not require any copy clearance, trademark searches, or risk reporting by TBWA, but obligates Taco Bell to indemnify TBWA when Taco Bell elects to proceed in the event that risks are brought to its attention. Additionally, Taco Bell was the party aware of the potential risks of using a Chihuahua character in its advertising. It was Taco Bell that had an undisclosed contract with Wrench and denied the existence of that contract. Taco Bell's argument that TBWA failed to meet an obligation under the Agency Agreement by failing to do copyright and trademark searches is meritless not only because it is not supported by the language in the Agency Agreement, but also because the Wrench liability included neither copyright nor trademark damages. As discussed, the entire judgment was based on Taco Bell's breach of an implied contract to pay Wrench for use of Psycho Chihuahua.


Taco Bell argues that TBWA should be precluded from denying that it was at fault and that its fault caused the liability to Wrench. We disagree.

The Supreme Court has held that "federal common law governs the claim-preclusive effect of a dismissal by a federal court sitting in diversity." ...Federal common law requires application of "the law that would be applied by state courts in the State in which the federal diversity court sits." Id. The Wrench judgment was rendered by a federal court sitting in diversity in the Western District of Michigan, and the court applied Michigan law. Therefore, any preclusive effect of the Wrench jury verdict and judgment is governed by Michigan law....

Under Michigan law, three elements must be satisfied for issue preclusion to apply: (1) a question of fact essential to the judgment must have been actually litigated and determined by a valid and final judgment; (2) the same parties must have had a full and fair opportunity to litigate the issue; and (3) there must be mutuality of estoppel....The district court properly found that collateral estoppel did not apply because Taco Bell was at fault in Wrench and nothing further could be inferred from the undisputed facts. ...

Taco Bell relies on the Wrench jury finding that "the Chihuahua used by Taco Bell was not independently created by [TBWA] " in support of its argument that TBWA is collaterally estopped from disputing its fault or negligence. For the reasons discussed above, the jury instructions underlying that finding left doubt as to what the Wrench jury decided on the independent creation issue and prevent issue preclusion as to TBWA's asserted fault. ...The district court's analysis is correct. Considering the instructions given, the Wrench jury finding that the character used by Taco Bell was "not independently created by [TBWA] " does not clearly establish what the jury decided on the "independent creation" issue, the issue of fact Taco Bell is attempting to preclude TBWA from contesting. The requirement that the question of fact essential to judgment be actually litigated and determined is, therefore, not met. ...Taco Bell and TBWA also lacked the privity required for issue preclusion. The fault-based indemnification provisions of the Agency Agreement created a direct conflict between Taco Bell and TBWA which prevented Taco Bell from representing TBWA's interests during the Wrench trial. This created a due process bar to enforcing issue preclusion against TBWA. ...

Taco Bell and TBWA were not in privity in the Wrench action because the terms of the Agency Agreement put their interests in conflict. The parties' acknowledgment of their "mutuality of interest in a common defense" of the Wrench claims in the Joint Defense Agreement does not overcome the conflict created by the Agency Agreement. Under Paragraphs 7.1 and 7.2, TBWA had no indemnification obligation for any liability resulting from Taco Bell's fault or negligence, but Taco Bell was entitled to indemnification from TBWA for any liability resulting from TBWA's fault or negligence. Given that conflict of interest, the district court properly determined that Taco Bell could not have adequately represented TBWA's interests in Wrench. Holding the Wrench verdict binding on TBWA would be a due process violation.

Furthermore, as properly decided by the district court, TBWA cannot be held at fault under the Agency Agreement which allows it to rely on the approval of Taco Bell. Taco Bell approved the Chihuahua character proposed by TBWA and continued to approve the Chihuahua advertisements for broadcasting after the Wrench lawsuit was initiated, despite the existence of its implied contractual commitment to Wrench.

The case is Taco Bell v. TBWA Chiat/Day, 2009 U.S. App. LEXIS 1286 (2009). Here's a little more on the story from NPR.

January 27, 2009 | Permalink | TrackBack (1)

Allen Out at SAG

The Hollywood Reporter reports that SAG executive director Doug Allen is out at the union, suggesting that the possibility of a strike now is virtually over. THR says "moderate forces" used little known procedural rules to force Mr. Allen out. Who's in? Former SAG general counsel David White, a Stanford Law grad, with John McGuire replacing Mr. Allen as head negotiator; he'll now deal with the studios.

January 27, 2009 | Permalink | TrackBack (0)

Obama Issues Executive Order On Presidential Records

Here's the text of the President's Executive Order on Presidential Records, issued Jan. 21, 2009.

Executive Order -- Presidential Records

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to establish policies and procedures governing the assertion of executive privilege by incumbent and former Presidents in connection with the release of Presidential records by the National Archives and Records Administration (NARA) pursuant to the Presidential Records Act of 1978, it is hereby ordered as follows:

Section 1.  Definitions.  For purposes of this order:

(a)  "Archivist" refers to the Archivist of the United States or his designee.

(b)  "NARA" refers to the National Archives and Records Administration.

(c)  "Presidential Records Act" refers to the Presidential Records Act, 44 U.S.C. 2201-2207.

(d)  "NARA regulations" refers to the NARA regulations implementing the Presidential Records Act, 36 C.F.R. Part 1270.

(e)  "Presidential records" refers to those documentary materials maintained by NARA pursuant to the Presidential Records Act, including Vice Presidential records.

(f)  "Former President" refers to the former President during whose term or terms of office particular Presidential records were created.

(g)  A "substantial question of executive privilege" exists if NARA's disclosure of Presidential records might impair national security (including the conduct of foreign relations), law enforcement, or the deliberative processes of the executive branch.

(h)  A "final court order" is a court order from which no appeal may be taken.

Sec. 2.  Notice of Intent to Disclose Presidential Records.

(a)  When the Archivist provides notice to the incumbent and former Presidents of his intent to disclose Presidential records pursuant to section 1270.46 of the NARA regulations, the Archivist, using any guidelines provided by the incumbent and former Presidents, shall identify any specific materials, the disclosure of which he believes may raise a substantial question of executive privilege.  However, nothing in this order is intended to affect the right of the incumbent or former Presidents to invoke executive privilege with respect to materials not identified by the Archivist.  Copies of the notice for the incumbent President shall be delivered to the President (through the Counsel to the President) and the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel).  The copy of the notice for the former President shall be delivered to the former President or his designated representative.

(b)  Upon the passage of 30 days after receipt by the incumbent and former Presidents of a notice of intent to disclose Presidential records, the Archivist may disclose the records covered by the notice, unless during that time period the Archivist has received a claim of executive privilege by the incumbent or former President or the Archivist has been instructed by the incumbent President or his designee to extend the time period for a time certain and with reason for the extension of time provided in the notice.  If a shorter period of time is required under the circumstances set forth in section 1270.44 of the NARA regulations, the Archivist shall so indicate in the notice.

Sec. 3.  Claim of Executive Privilege by Incumbent President.

(a)  Upon receipt of a notice of intent to disclose Presidential records, the Attorney General (directly or through the Assistant Attorney General for the Office of Legal Counsel) and the Counsel to the President shall review as they deem appropriate the records covered by the notice and consult with each other, the Archivist, and such other executive agencies as they deem appropriate concerning whether invocation of executive privilege is justified.

(b)  The Attorney General and the Counsel to the President, in the exercise of their discretion and after appropriate review and consultation under subsection (a) of this section, may jointly determine that invocation of executive privilege is not justified.  The Archivist shall be notified promptly of any such determination.

(c)  If either the Attorney General or the Counsel to the President believes that the circumstances justify invocation of executive privilege, the issue shall be presented to the President by the Counsel to the President and the Attorney General.

(d)  If the President decides to invoke executive privilege, the Counsel to the President shall notify the former President, the Archivist, and the Attorney General in writing of the claim of privilege and the specific Presidential records to which it relates.  After receiving such notice, the Archivist shall not disclose the privileged records unless directed to do so by an incumbent President or by a final court order.

Sec. 4.  Claim of Executive Privilege by Former President.

(a)  Upon receipt of a claim of executive privilege by a living former President, the Archivist shall consult with the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel), the Counsel to the President, and such other executive agencies as the Archivist deems appropriate concerning the Archivist's determination as to whether to honor the former President's claim of privilege or instead to disclose the Presidential records notwithstanding the claim of privilege.  Any determination under section 3 of this order that executive privilege shall not be invoked by the incumbent President shall not prejudice the Archivist's determination with respect to the former President's claim of privilege.

(b)  In making the determination referred to in subsection (a) of this section, the Archivist shall abide by any instructions given him by the incumbent President or his designee unless otherwise directed by a final court order.  The Archivist shall notify the incumbent and former Presidents of his determination at least 30 days prior to disclosure of the Presidential records, unless a shorter time period is required in the circumstances set forth in section 1270.44 of the NARA regulations.  Copies of the notice for the incumbent President shall be delivered to the President (through the Counsel to the President) and the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel).  The copy of the notice for the former President shall be delivered to the former President or his designated representative.

Sec. 5.  General Provisions.

(a)  Nothing in this order shall be construed to impair or otherwise affect:

(i)   authority granted by law to a department or agency, or the head thereof; or

(ii)  functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative proposals.

(b)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c)  This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Sec. 6.  Revocation.  Executive Order 13233 of November 1, 2001, is revoked.


    January 21, 2009

January 27, 2009 | Permalink | TrackBack (0)

Acting Chair Copps Speaks To FCC Staff

Here are FCC Commissioner Michael Copps's remarks to FCC staff as he accepts the position of Acting Chair.

Thank you for joining me today here in the Commission meeting room or, for many, joining me virtually via closed circuit throughout the FCC.  As most of you know by now, I was asked by President Obama to chair the FCC through its transition to new leadership—and I was pleased to accept.  We have some very immediate challenges on the horizon that must be dealt with and also, going forward, some of the most exciting opportunities we have ever had to bring the wonders of communications to all our fellow citizens throughout the land.  The business of this Commission goes on.

From this podium, over the past almost eight years, I have delivered statements and informal remarks, welcomed advisory committees and many different stakeholder groups, and interacted with innumerable workshops—but never have I felt such an important responsibility as I do today talking to all of you about how we, together, can galvanize and utilize the collective wisdom, expertise and talent that so abounds in this Agency to better serve the American people.

I am a believer, as many of you know, in public service.  It is among the most honorable callings that any citizen can undertake.  I have spent most of my nearly 39 years in Washington in public service—privileged and honored to work for a United States Senator (a really great one, by the way, Fritz Hollings from South Carolina, who did so much for this agency for so many years), for the Commerce Department as an Assistant Secretary, and more recently as a Commissioner at the FCC.  I know that many of you feel exactly as I do about public service and that all of you have devoted a portion of your lives—some of you very large portions—to public service here at the FCC and elsewhere in government.  Always be proud of that service.

This is such an important agency.  So much of America’s future depends upon the nation’s success in bringing the opportunity-generating tools of modern communications to all our citizens.  The FCC has been an essential part of shaping the communications landscape in our country for nearly 75 years.  We haven’t paused to think about it much, but 2009 is our Diamond Jubilee year because it was1934 when President Franklin Roosevelt—my hero, incidentally—called upon Congress to establish the FCC as part of the New Deal.  And, as recently as last week in his inaugural address, President Barack Obama called on the country to build the “digital lines that feed our commerce and bind us together.”  So today we face new challenges and new opportunities that make the FCC’s role more important than ever. My purpose in asking to speak with you today is not to discuss a particular FCC policy or program. Instead, it is to focus on the Agency’s most important asset—its people—and talk about what we can do together, as members of an elite team, to create opportunities for people through communications.

To succeed in our mission, the FCC must utilize its resources—especially its human resources—smartly and inclusively.  And we must be credible not only in what we do, but how we go about doing it.  But I worry that in some important ways we haven’t always been doing that.  I am troubled that our lines of communication, both internal and external, seem to have frayed.  Our credibility suffers when that happens.  So the first thing we need to do as an organization is to improve our lines of communication, enhance the level of transparency in our work, and bring to our daily decisions the kind of openness that gives true credibility to everything we do.

Change needs to occur, for openers, in at least three distinct areas: how the various Bureaus and Offices work with each other; how the Commissioners communicate with one another and with the Bureaus; and how the Commission communicates with the public.  Let me address each of these separately.

The Digital Age means we are living at a time of communications convergence where wireless, wireline and video communications are more and more intertwined. So too must there be convergence within the FCC.  I don’t mean this requires physically merging different offices, and even if it did, an Acting Chairmanship is not the mechanism to launch such a process.  But it does require an open exchange of ideas in an effort to find solutions to the challenges confronting us.  That progress can—that progress must—begin right away. There is no reason I can see for not having the various Bureaus and Offices more closely collaborating with each other on issues of mutual interest. As just one example, why not include the General Counsel’s office, EB, CGB, OCBO and the Office of Workplace Diversity early on to help solve problems upfront rather than having to try and fix them on the back end after things have gone wrong?  Communications is as cross-cutting as anything can be and the agency dealing with communications needs to be cross-cutting, too.  If we can’t communicate with ourselves, we shouldn’t have the word “Communications” in our title. 

I also believe there should be a renewed focus here on professional development.  Speaking and writing opportunities should be encouraged whenever practicable, participation in FCC University applauded, and going the extra-mile rewarded by your peers and supervisors.

Second is how Commissioners and Bureaus communicate between and among themselves.  In order for all of us to do our jobs well, make reasonable policy decisions, oversee the regulated industries under our purview, and represent American consumers, we must improve these lines of communication as well.  To promote more opennesss, starting this coming week, we will have a weekly Chairman’s Office Briefing with Bureau and Office chiefs, or their designees, and we will include a representative from each Commissioner’s office.  Opening up these meetings will, I am convinced, significantly improve the quality of our decision-making.  It will also expedite the business of the Commission.  I also want to ensure that my Commissioner colleagues have unfettered access to the Bureaus, with the presumption being that requests for information will be honored, and that there will be positive outreach from the Bureaus and Offices to them, with the presumption being that important information shouldn’t have to be asked for—it should be provided.  I realize this is not a bureau-created problem but, beginning now, requests from Commissioners’ offices—not just the Chairman’s Office—should be answered directly and as quickly as possibly, just as if the Chairman’s Office is asking for it and without the need for running those requests through the Chairman’s office first—the only exception I can currently think of being the very narrow one that such requests not be unusually time-consuming or necessitate an excessive juggling of Bureau or Office resources.  In those cases, we will attempt to craft a workable solution.    

            Thirdly, and most critically, there are the actions we must take now to make the FCC more transparent, open and useful to the stakeholders that we serve. And when I say stakeholders, I include not just the industries that we regulate but, more importantly, all citizens—and here let me once again underline the word “all.  Regardless of whether a person is rich or poor, lives in a rural or urban area or on tribal lands, in affluence or is struggling just to get by, whether they have a disability or are senior citizens or college students, they are—each and every one of them—a stakeholder.  The spectrum is theirs and the rest of us are stewards.  No matter who it is, every citizen in this great land has a right to expect that we will keep them in the forefront of our attention and concern.  It’s what the public interest is all about. 

So much potential advice and input, so much help we could be getting, from non-traditional stakeholders is out there, just waiting to be gleaned.  I’ve seen it in countless communities and town hall meetings across the land, as well as in dozens of academic and professional and business circles.  So much expertise and wisdom that can be ours for the asking and just for taking the time! 

Here’s another great source of input that we need to be smarter about—our FCC advisory committees. We have many of these, with hundreds of people willing to devote their time and energy to improving our processes and our decisions here.  We have not begun to take full advantage of them.  It is a missed opportunity to have some advisory committees totally out of action and the advice of others downplayed or even, unfortunately, ignored.  We only make life more difficult for ourselves that way.  We will all benefit from these committees’ inputs.  It is my hope that they become a more active force at the Commission, and my intention is to begin the process of their reinvigoration now. 

This Commission should also be making its expertise and creative thought available to the outside world on a more regular basis.  One way to do this is to produce high-quality, timely reports for Congress to inform the public policy dialogue—reports that are non-partisan, truly instructive and beyond reproach.  Another important way to do this is through White Papers on a variety of public policy issues that would be put out for public consumption.  These various reports and White Papers wouldn’t speak for the Commission, but they would help people understand important communications issues and thereby enhance the communications dialogue that is so important to America’s future.  Such papers would also educate the media on important communications issues facing the country, and be another important source for both Congressional and Administration policy planning.  So we will begin working to build a framework and develop priorities and procedures for such reports and papers. 

In the weeks ahead, our three most important priorities will be, as you have heard me say already, DTV, DTV and DTV.  We are already moving to improve coordination of the Commission’s efforts, to deploy new ideas and resources, and to do whatever we can do, at this late date, to better focus our efforts to minimize what is certain to be considerable consumer disruption on February 18.  It is no secret that I have always favored a more proactive and coordinated public-private partnership to fashion a seamless DTV transition.  It’s too late for that seamlessness now, but we have an obligation to do what we can in the three weeks remaining to minimize the dislocation and then, in the weeks following, to repair the things that didn’t work.  Should Congress extend the transition date, that will afford some additional and badly-needed time.  I hope that time will be accompanied with some additional resources for the Commission’s important work.

I know that many of you are directly involved in the planning and outreach efforts accompanying the DTV transition.  You are doing yeoman’s work and are owed a tremendous debt of gratitude.  I appreciate all of the efforts made by those of you who volunteered and have been flying or driving to little known places and spending days away from your families in order to help.  And I know that Commissioners Adelstein and McDowell, who have worked so hard and traveled to so many places in behalf of DTV education, share my sense of deep gratitude. Yet so much remains to be done, from the how-to of converter boxes to educating people about antennas and scanning, to getting the word out about the variabilities and peculiarities of digital signal coverage, and the list goes on. There are still millions of Americans who need help to understand what they need to do to ensure continued over-the-air television reception in the digital age.  It is with this stark challenge in mind that I ask today for additional FCC volunteers to come forward and help.  I’d love for you to put your name forward for membership in our DTV volunteer team.  I include senior managers in this, too.  And I am also asking that managers and supervisors try to accommodate those employees who are willing and able to help.  If there is something more important than helping with the DTV transition that precludes a potential volunteer from contributing, fine, we will take that into consideration.  But the presumption ought to be in favor of this work.  Those who are brought onto the team will be working long and hard but they will be responding to a truly urgent priority. 

Meanwhile, I understand that there are other things that will require our attention in the weeks ahead.  Some things are on deadline and must be attended; other things are less than wildly controversial and we should be able to move on many of these without detracting from our DTV efforts; other issues can be teed up for future resolution.  As just one example, we have sitting, in many nooks and crannies, backlogs of routine items from stakeholders seeking clarification or a license or some other non-hot button request.  Some of these decisions might actually help boost our sagging economy, so they are timely and important.  I would ask that you work with your supervisors to catalogue these items and develop a plan for addressing them at the Bureau level where appropriate and at the Commission level if need be.

Sometimes it is the little things that can make life easier on us here at the Commission.  One of those little things is establishing a calendar for open meetings.  Our next two full Commission meetings will occur on February 5 and March 5.  Last but not least, the Commission has a wealth of resources on its website. Some of it is easy to find and use; much of it is, unfortunately, difficult to locate and even more difficult to use—for us at the Commission, and, worse, for the public at large.  The Commission must update its website to be more user-friendly.  While it will take time to re-do the entire website (and such efforts should culminate under permanent FCC leadership), we can and will proceed with the DTV page now and, in fact, folks have already started looking into how to reconfigure our DTV information and make it more user-friendly.

Let me give credit where credit is due. These ideas for reform are not solely mine. Many have been suggested by my colleagues and friends, Commissioner Adelstein and Commissioner McDowell. Others have been raised by the public.  And indeed, one speech does not make everything better and certainly my role as Chairman for an interim period allows me only to begin this process. However, the changes I have outlined today are an essential down-payment on the reforms necessary to revitalize and reenergize this Agency.  Much more will be needed and I may address some of this in the days and weeks ahead.  Others will await our new leadership.  I expect that a new Chairman will join the FCC in the relative near-term.  It is my goal, with your help, to hand over an Agency that is more open, more transparent and more vibrant than it is today—one that is prepared to serve the many and diverse interests of the American people and thereby to advance the public interest—which must always be the Commission’s North Star.

So let me stop here.  As you can imagine, we have just about non-stop meetings going on as we attempt to get on top of all this and more, but I’m happy to take a question or two, or, better, to receive suggestions and comments, as together we try to fashion the best possible future for our FCC.  I would also suggest that as you have some time to ruminate on what I’ve discussed today, I hope you will feel free to share those thoughts with me via e-mail or paper or through your Bureaus and Offices.

Thank you.

January 27, 2009 | Permalink | TrackBack (1)