Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, April 29, 2020

FCC Approves Fourth Set of COVID-19 Telehealth Program Applications

The FCC has approved another set of COVID-19 telehealth program applications. Text here. 

More information about the telehealth program, including prior FCC program application approvals, here. 

April 29, 2020 | Permalink

Tuesday, April 28, 2020

FCC Issues Notice of Proposed Rulemaking: One-Ring Scam Calls

The FCC has issued a Notice of Proposed Rulemaking in the matter of one-ring scam calls. 


“One-ring scams are annoying and pernicious, waking up many Americans with confusing calls in the middle of the night and tricking them out of their money if they call back,” said FCC Chairman Ajit Pai. “With this effort, this agency shows it’s serious about aggressively combating this scam. I look forward to hearing from the public about their ideas for putting an end to this. And in the meantime, I urge them not to call back if they get calls like this.”

One-ring scammers call American consumers from a foreign country with a number that appears to come from the United States. After a single ring, the scammer hangs up, enticing the consumer to return the “missed call.” Scammers may also leave consumers a voice mail message with a false pretext for the consumer to call them back. In either instance, U.S. consumers incur significant phone charges (of which the scammer gets a share) when they return the international call. Callers often call in the middle of the night and may call multiple times in a row in order to create an appearance of urgency while trying to ensure the call is not answered.

Last year, the Commission issued a consumer alert with tips for consumers to protect themselves. The FCC also advises consumers to not answer or return any calls from numbers they do not recognize, to check whether an unfamiliar number has an international area code before returning the call, and to ask their phone company to block outgoing international calls if they do not make such calls.

In this NPRM, the FCC seeks comment on proposals for implementing the TRACED Act’s requirements to further protect consumers from the one-ring scam, including: allowing voice service providers to block calls highly likely to be associated with a one-ring scam; working with federal, state, and foreign law enforcement and government agencies to combat one-ring scams; building on existing consumer education and outreach efforts; enhancing FCC work with entities that provide call-blocking services; and seeking consensus on what obligations international gateway providers should have in the efforts to stop these calls.

The FCC’s Enforcement Bureau and the Federal Trade Commission recently sent letters to three gateway providers suspected of facilitating COVID-19-related scam robocalls, warning them that if they did not stop such traffic, the Commission would authorize other U.S. voice service providers to block all calls entering the U.S. via these gateway providers. Within 24 hours, those gateway providers stopped carrying those scam robocalls. The NPRM seeks comment on whether such a model could be extended to combat one-ring scam calls.

April 28, 2020 | Permalink

Friday, April 24, 2020

Calls For Papers

Two research-related opportunities:


Submissions from practitioners and students welcome.

April 24, 2020 | Permalink

Saturday, April 18, 2020

Post and Rothman on The First Amendment and the Right(s) of Publicity @profrothman

Robert Post, Yale Law School, and Jennifer E. Rothman, Loyola (Los Angeles) Law School, are publishing The First Amendment and the Right(s) of Publicity in volume 130 of the Yale Law Journal (2020). Here is the abstract.

The right of publicity protects persons against unauthorized uses of their identity, most typically their names, images, or voices. The right is in obvious tension with freedom of speech. Yet courts seeking to reconcile the right with the First Amendment have to date produced only a notoriously confused muddle of inconsistent constitutional doctrine. In this Article we suggest a way out of the maze. We propose a relatively straightforward framework for analyzing how the right of publicity should be squared with First Amendment principles. At the root of contemporary constitutional confusion lies a failure to articulate the precise state interests advanced by the right of publicity. We seek to remedy this deficiency by disaggregating four distinct state interests that the right of publicity is typically invoked to protect. We argue that in any given case the right of publicity is characteristically invoked to protect (one or more) of these four interests: the value of a plaintiff’s performance, the commercial value of a plaintiff’s identity, the dignity of a plaintiff, or the autonomous personality of a plaintiff. Plaintiffs’ interests in their identity must always be weighed against defendants’ constitutional interests in their speech. We therefore isolate three constitutional kinds of communication, each with a distinct form of First Amendment protection. A defendant’s misappropriation of a plaintiff’s identity can occur in public discourse, in commercial speech, or in what we call “commodities.” We then discuss how constitutional protections for these three kinds of speech should intersect with the four different interests that right of publicity claims are typically invoked to protect. The upshot is not a mechanical algorithm for producing correct constitutional outcomes, but an illumination of the constitutional stakes at issue in any given right of publicity action. We hope that by carefully surfacing the constitutional and policy stakes that beset the conflict between right(s) of publicity and the First Amendment, we have sketched a map that might substantially assist those who must navigate this tumultuous terrain.

Download the article from SSRN at the link.

April 18, 2020 | Permalink

Friday, April 17, 2020

Call For Applications, First Amendment Fellow: Sandra Day O'Connor College of Law, Arizona State University @ASUCollegeofLaw

The Sandra Day O'Connor College of Law at Arizona State University is accepting applications for the Stanton First Amendment Fellow for its First Amendment Clinic. The full-time position begins August 15, 2020, for a one-year term with the possibility for a second year. The purpose of the fellowship is to enable an experienced litigator to shift gears and develop a new expertise in First Amendment litigation, so the ideal candidate will have an active Arizona bar membership and at least three years of litigation experience.

More information about the posting is available here:

April 17, 2020 | Permalink

Thursday, April 16, 2020

Frosio on How Communication to the Public Affects Internet Architecture @GCFrosio

Giancarlo Frosio, Universite de Strasbourg, CEIPI; Stanford University Law School Center for Internet and Society, is publishing It's All Linked: How Communication to the Public Affects Internet Architecture in volume 36 of the Computer Law & Security Review (forthcoming).

The architecture of the Internet is changing. A novel expansive construction of communication and making available to the public has been shaking the Internet ecosystem. It reaches into basic online activities, such as linking. Departing from well-established international approaches, the Court of Justice of the European Union (CJEU) has recently decided a multitude of cases that redesigned the notion of communication to the public in the Internet, while discussing linking activities in particular. This jurisprudence stands against a fluid legal framework searching for the optimal allocation of intermediary liability of information service providers. Communication to the public is at the center stage of this legislative process as well. EU copyright legislative reform makes Online Content Sharing Service Providers (OCSSP) — the large majority of UGC platforms — communicating to the public. In doing so, the Copyright in the Digital Single Market Directive changes the fundamental rules under which online platforms operate and UGC content is created for a large portion of the connected world. This, in turn, is forcing online intermediaries to remodel the architecture of the Internet accordingly. Proactive filtering — rather than ex ante review of allegedly infringing content and links — is set to become the first commandment governing the Internet of tomorrow.

Download the article from SSRN at the link.

April 16, 2020 | Permalink

Thursday, April 2, 2020

Carroll on How We Talk About the Press @erinccarroll13 @GeorgetownLaw

Erin C. Carroll, Georgetown University Law Center, is publishing How We Talk About the Press in the Georgetown Law Technology Review. Here is the abstract. Erin C. Carroll, How We Talk About the Press, Georgetown Law Technology Review (Forthcoming)

In 2017, the term “fake news” was so popular that it received the “Word of the Year” honor from the American Dialect Society. Since then, its popularity may have abated some, but its use persists. Most obviously, anti-press speakers weaponize the term fake news to undermine journalists and the press as an institution. Perhaps more surprisingly, however, the term is also in regular rotation among many who would seem to support a free and independent press, including scholars, teachers, and journalists themselves. The continued and often-uncritical use of fake news should worry us. As thinkers across disciplines have recognized for centuries, the names we use matter. Names shape the very way we understand things. And this is especially true when it comes to the press. Although conventional wisdom is that press power and freedom spring primarily from the First Amendment, in reality, the doctrine is that the press has no greater rights than any other speaker. Press power and freedom are derived in large part from customs and norms. And those customs and norms draw sustenance from the positive language of the courts, other institutions, and the public about how the press serves the democratic functions of truthful educator, trusted proxy, and fair watchdog. Press power is, in great part, rhetorical power. This rhetorical power is especially fragile in our networked information sphere. As we are coming to understand, when labels or narratives are decontextualized and amplified, we begin to internalize and adopt them, sometimes regardless of their accuracy or how savvy we believe ourselves to be. Moreover, what is blunt and vitriolic generally scales further and faster than what is nuanced or measured. As a label, fake news is arguably becoming so entrenched and normalized that it might ease the way for other terms that rhetorically marry the press to falsity, bias, and laziness—like “pink slime journalism”—to slip into our everyday discourse. If protecting the press was the only goal of curbing anti-press rhetoric that would be enough. But there is another reason to do it. How we talk about the press plays into how we tackle one the biggest challenges of our networked age—stemming information pollution. Fundamental to this effort is separating accurate information from false, trusted sources from manipulated ones, and journalism from propaganda and marketing. If we use labels that conflate these categories, we make a daunting task harder. For these reasons, it is increasingly important that we take care in how we talk about the press.

Download the essay from SSRN at the link.

April 2, 2020 | Permalink

Wednesday, April 1, 2020

Horton on Daily Newspapers and Antitrust: As Relevant and Crucial To Our Democracy as Ever

Thomas Jeffrey Horton, University of South Dakota School of Law, has published Daily Newspapers and Antitrust: As Relevant and Crucial to Our Democracy as Ever in Media Markets and Competition Law: Multinational Perspectives 153 (Antonio Bavasso, David S. Evans, Douglas H. Ginsburg eds.), 2019. Here is the abstract.

Daily newspapers today are under siege. The future viability of traditional daily newspapers is being questions due to the rise of Internet information sources, as well as the current political attacks on the press. This article argues that those predicting "doom and gloom" for the daily newspaper industry are short-sighted, given the continued popularity of high-quality investigative journalism and ever-present need for accountability reporting in our democracy. With many readers consuming daily newspapers' content through their innovative online platforms, the competition of the Internet had increased the quality of newspaper journalism, after a period of declining quality due to aggressive consolidation in the print industry. Discussing the 1970 Newspaper Preservation Act ("NPA"), which was supposed to protect editorial diversity by allowing horizontal economic consolidations, the author observes that it actually led to lower quality journalism and less competitive newspapers. The author argues that the NPA should be repealed, and aggressive competition encouraged between newspapers at both the local and national geographic levels through the rigorous enforcement of the antitrust laws. Newspapers should continue to be analyzed as a distinct product market by antitrust enforcers, and further horizontal mergers and consolidation discouraged, and, if necessary, rejected.

Download the essay from SSRN at the link.

April 1, 2020 | Permalink