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Law & Policy: Broadcasting

Unlicensed Retransmission: Aereokiller

Filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit urging the court to overturn a district court decision in Fox Television Stations, Inc. v. Aereokiller, LLC, which would allow FilmOnX (Aereokiller) to qualify for a compulsory license under Section 111 of the Copyright Act.  The brief noted that Congress intended Section 111 to cover only traditional cable systems; that the Copyright Office has said for decades that Internet transmissions do not qualify under Section 111; and that the Supreme Court’s decision in Aereo III does not support treating Internet transmissions as a cable system under Section 111.  The brief was written by Rodney A. Smolla, Dean of the Delaware Law School at Widener University.  [2016] Click here to view brief.

Unlicensed Retransmission: Aereo

Filed an amicus brief in the U.S. Supreme Court, in a case that could have disastrous consequences for the U.S. broadcasting industry.  The Institute filed a brief in American Broadcasting Companies, Inc. v. Aereo, Inc., arguing that Aereo's model for distributing broadcast content to its subscribers violates broadcasters' rights under copyright law and is merely a blatant attempt to avoid paying licensing fees.  The brief outlines in detail why the decision of the the U.S. Court of Appeals for the Second Circuit upholding Aereo's distribution model was wrong, and should be reversed.  The brief was written by Prof. Rod Smolla, visiting professor of law at the Duke University School of Law.  [2014] Click here to view brief.

Unlicensed Retransmission: Aereo

Filed an amicus brief in the U.S. Supreme Court, asking the Court to grant a writ of certiorari from petitioners in American Broadcasting Companies, Inc. v. Aereo, Inc.  The brief argues that Aereo's bizarre scheme of using thousands of tiny antennas to retransmit broadcast content to its subscribers amounts to "manipulative technological exploitation."  The brief explains why the decision of the the U.S. Court of Appeals for the Second Circuit upholding Aereo's practices was wrong.  That decision poses a massive threat to the settled economic and legal arrangements that undergird the broadcast industry, the brief states.  The brief was written by Prof. Rod Smolla, visiting professor of law at the Duke University School of Law.  [2013]  Click here to view brief.

Unlicensed Retransmission: Aereokiller

Filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit in Fox Television Stations, Inc. v. Aereokiller, LLC, urging the court to affirm injunctive relief for broadcasters.  Aereokiller employs a technological scheme to retransmit protected broadcast content to its subscribers in an attempt to circumvent licensing fees.  The brief, written by Furman University President Rod Smolla, argues that Aereokiller's unlicensed retransmissions undermine settled economic expectations and run contrary to the legislative history of the 1976 Copyright Act.  The brief also notes that the Second Circuit's recent decision in Aereo is wrong and should be rejected by the Ninth Circuit.  [2013]  Click here to view brief.

Untruthful Speech

Joined with 23 other leading media organizations in filing an amicus brief with the U.S. Supreme Court in United States v. Xavier Alvarez.  The brief urged the Supreme Court to uphold a decision by the U.S. Court of Appeals for the Ninth Circuit that the “Stolen Valor Act,” which makes it a crime to make false claims about receiving military honors, should be struck down because it is an unconstitutional restriction of speech.  The law improperly creates a new category of speech exempt from First Amendment protection, the brief stated.  Untruthful speech can be detected and exposed without rewriting First Amendment principles, the brief concluded.  [2012]  Click here to view brief.

Broadcast Indecency

Filed a friend-of-the court brief, joining with The Thomas Jefferson Center, in the U.S. Supreme Court in FCC v. Fox Television Stations, Inc.  The brief argued that the Supreme Court should invalidate its decision in FCC v. Pacifica (the “seven dirty words” case) because Pacifica impermissibly created a novel category of unprotected speech; Pacifica’s justifications are outdated in today’s media landscape; and more narrowly tailored options exist than the FCC’s safe-harbor provision.  Even if Pacifica is retained, the brief argued, the FCC’s current indecency enforcement regime should be overturned because it unconstitutionally chills protected speech.  [2011]  Click here to view brief. 

Hate Speech

Joined with 21 other media organizations in filing an amicus curiae brief before the U.S. Supreme Court in Snyder v. Phelps.  The brief argued that media outlets cannot be silenced or held liable for reporting hateful or disturbing speech.  Phelps and his Westboro Baptist Church had tried to harass Snyder and other military families by protesting on the outskirts of military funerals.  Snyder only saw the protest in question after the funeral in media reports.  Moreover, the brief noted that this is a matter between private parties and thus does not implicate the First Amendment, because the government did not censor the content of Phelps’s speech.  [2010]  Click here to view brief.

Future of Media

Filed comments with the FCC in its proceeding “Examination of the Future of Media and Information Needs of Communities in a Digital Age.”  The comments stated: “As the Commission assesses proposals to ensure the future of media in this proceeding, we urge that it keep firmly in mind the following 45 words:”  This cautionary preface was followed by the words of the First Amendment.  [2010]  Click here to view comments.

Broadcast Indecency

Filed a friend-of-the court brief, along with The Thomas Jefferson Center, in the U.S. Court of Appeals for the Second Circuit in Fox Television Stations, Inc. v. FCC.  The case had been remanded from the U.S. Supreme Court.  The brief stated that First Amendment protection should be extended to fleeting expletives on broadcast programming.  The Supreme Court has never recognized profanity as a category exempt from First Amendment protection, the brief noted, among other reasons.  The Second Circuit was considering the constitutionality of the FCC’s stricter indecency policy, which the court had overturned earlier on procedural grounds. [2009] Click here to view brief.

Broadcast Indecency

Filed a friend-of-the-court brief, along with The Thomas Jefferson Center, in the U.S. Supreme Court regarding the FCC’s policy on indecency and profanity as applied to two music awards programs broadcast on Fox stations. The brief urged the Court to uphold a ruling by the U.S. Court of Appeals for the Second Circuit that the FCC had acted arbitrarily, and in violation of the Administrative Procedure Act, in tightening its policy on “fleeting expletives.” The brief further urged the Court to consider the broader First Amendment implications of the FCC’s stricter stance against indecency and profanity. [2008] Click here to view brief.

Government-Mandated PSAs

Sent a letter to FCC Chairman Kevin Martin urging the Commission not to require TV broadcasters to carry government-mandated content pertaining to the digital television transition. Requiring TV stations to air public service announcements containing government-mandated content would be a form of compelled speech clearly at odds with the First Amendment. The broadcasters’ voluntary education plan would likely be more effective in any event, the Institute said. [2008] Click here to view comments.

Proposed Satellite Radio Merger

Submitted comments to the FCC regarding the proposed merger of XM Satellite Radio and Sirius Satellite Radio. The Institute took no position on the merits of the proposed merger itself, but raised concerns about the impact of a merger on over-the-air radio broadcasters. The Institute said that if the Commission approves the satellite radio merger, it should concurrently remove restrictions on broadcast radio to allow broadcasters to remain competitive. [2007] Click here to view comments.

Broadcasting Localism

Sent a letter to FCC Chairman Kevin Martin expressing concern about proposed content regulations on radio broadcasters. The proposed regulations would establish government-preferred categories of programming in the name of “localism.” Broadcasters would have to carry this programming to ensure renewal of their licenses. Such interference in content is proscribed by the Communications Act and would run afoul of the First Amendment, the Institute warned. [2007] Click here to view letter

Violence in Entertainment Media

Submitted an Institute issue paper on TV violence with cover letter to the House Subcommittee on Commerce, Trade, and Consumer Protection. The subcommittee held a hearing on the possible effects of violent music lyrics on behavior. The issue paper, by Prof. Jonathan Freedman, examined similar concerns regarding TV violence, and found no research evidence to prove that violent TV images caused violent behavior in children. The Institute urged the subcommittee to take a cautious view of claims that music lyrics actually cause violent behavior, given Prof. Freedman’s findings in the TV realm. [2007] Click here to view letter and here to view issue paper...

Campaign Finance Reform

Filed comments along with the Thomas Jefferson Center to the Federal Election Commission, commenting on the FEC’s proposed rules to implement the U.S. Supreme Court’s ruling in two Wisconsin Right to Life, Inc. v. FEC cases (2006 and 2007). The cases challenged restrictions on campaign advertising contained in the Bipartisan Campaign Reform Act of 2002. The comments urged the FEC to remove or reduce reporting requirements, and commended the FEC for its proposal to establish a safe harbor for commercial and business advertisements. [2007] Click here to view issue paper...

Newspaper-Broadcast Cross Ownership

Filed reply comments with the FCC urging the Commission to grant waivers requested by Tribune Company for the five markets where it owns both a newspaper and a TV station. Tribune is seeking waivers of the newspaper-broadcast cross ownership rule as part of its transfer to Samuel Zell. The Institute said the waivers would not adversely affect competition and diversity; that waivers are consistent with the FCC’s ongoing efforts to relax the rule; that Tribune should not be penalized for the FCC’s procedural delays; and that the underlying rule should be repealed. [2007] Click here to view issue paper...

Television Violence

Released a "Policy Views" issue paper by Dr. Jonathan L. Freedman, professor of psychology at the University of Toronto, who warned that existing research does not support the claim that TV violence causes violent behavior in children. The research is actually "inconsistent, weak, and generally non-supportive," he wrote. This holds true for all types of research, including experimental studies, field experiments, and longitudinal studies. The FCC’s April 2007 report on TV violence was a "missed chance," Freedman said, calling it a "cursory" effort that did not provide "anything of much use." [2007] Click here to view issue paper...

Broadcast Ownership

Filed comments with the FCC urging the Commission to ease restrictions to allow some further consolidation of radio ownership in local markets, and to repeal the newspaper/broadcast cross ownership ban. The Institute said the Commission’s current rules are placing broadcast radio, television, and newspapers at a competitive disadvantage vis-à-vis new media at a time when the traditional media are struggling to compete. The Institute’s comments were in the form of an issue paper it published this year titled "Media Consolidation, Regulation, and the Road Ahead." [2006] Click here to view comments...

Broadcast Indecency

Filed comments with the FCC regarding the Commission’s application of its Golden Globe Awards indecency policy to episodes of four television programs, on remand from the U.S. Court of Appeals for the Second Circuit. The comments argue that broadcast content should receive the same full First Amendment protections as other media, and that any regulation of broadcast content should be subject to strict scrutiny. The comments urge the Commission, at a minimum, to revert to its pre-Golden Globe standard until the courts can offer clear guidance. [2006] Click here to view comments...

Broadcast Violence

Filed comments with the FCC opposing any attempts to extend the FCC’s regulatory authority to "violent" broadcast TV programming. There is no conclusive evidence that "violent" programming has a negative impact on children. Thus, it cannot be shown that restricting TV violence would further the government’s interest in protecting children. Apart from failing this First Amendment test, there is the practical problem of defining "violent" content. The Institute said there is no need for regulation because parents can use the V-chip to limit their children’s viewing. [2004] Click here to view comments...

Broadcast Indecency

Filed comments before the FCC urging the Commission to reconsider its ruling of March 18, 2004 that spelled out sweeping new restrictions on broadcast indecency and profanity. The Institute raised a strong First Amendment argument, noting that the new standards were vague, overly broad, and already creating a chilling effect on all types of broadcast content. The Institute urged the FCC to undertake a thorough First Amendment analysis of its indecency policy. Twelve members of the Institute's First Amendment Advisory Council lent their names to the comments. [2004] Click here to view comments...

Campaign Finance Reform

Submitted an amicus brief to the U.S. District Court for the District of Columbia challenging provisions of the Bipartisan Campaign Reform Act of 2002. The brief argued that the Act imposes an unprecedented blanket restriction on issue ads that mention candidates prior to elections; that its definition of "electioneering communication" is overly broad; that it precludes corporations and labor unions from funding political ads before federal elections; and that its extensive disclosure requirements remove anonymity from much political speech. These provisions are unconstitutional under the First Amendment, the brief argued. [2002] Click here to view comments...

FCC Complaint Process

Filed reply comments before the FCC regarding its proposal to implement a uniform process among all bureaus for consumer filing of informal complaints. The new plan would be modeled on the existing process for telephone-related complaints. The comments said that requirements for broadcast complaints should not be changed; the burden of proof should remain on the consumer for indecency and obscenity complaints; the FCC should not use this to extend its authority to other broadcast content, nor to coerce or chill the speech of broadcasters; and that a revised process should not place new regulatory burdens on broadcasters. [2002]

Radio Diversity

Filed reply comments before the FCC on the appropriate way of assessing diversity in the radio industry. The comments urged a new paradigm combining "outlet" diversity (variety of radio and other media outlets, and number of radio stations in a market) and a new measure, "format" diversity (number of different radio program formats in a market). "Viewpoint" diversity is hard to measure and not relevant to today’s radio industry, and "source" (or "ownership") diversity is an unreliable proxy for viewpoint diversity, the comments noted. [2002] Click here to view comments ...

Cross Ownership Rules

Filed comments before the FCC in response to a notice of proposed rulemaking seeking to modify or repeal the newspaper-broadcast cross ownership rule. The comments argued that viewpoint diversity cannot be created by regulation; that media scarcity no longer exists in numerical terms; that the FCC has enhanced competition elsewhere by repealing other ownership rules; and that the rule could not withstand today’s higher burden of proof under First Amendment scrutiny. The comments argued emphatically for outright repeal of the rule. [2001]

Congressional Subpoena

Letter to Rep. Henry A. Waxman with Legal Analysis

Submitted a letter to Rep. Henry A. Waxman (D-Calif.) urging him not to seek a subpoena compelling NBC to provide him with a videotape said to be shot in its control room on the night of the 2000 presidential election.  Attached to the letter was a legal analysis prepared by Robert Corn-Revere, Esq., noting that such an action would pose serious First Amendment problems.  The analysis further noted that Congress had refrained from seeking such subpoenas in the past.  The letter was also signed by the Reporters Committee for Freedom of the Press and the Society of Professional Journalists.  [2001] Click here to view letter and legal analysis ...

Campaign Finance Reform

McCain-Feingold and the First Amendment

The First Amendment says that "Congress shall make no law ... abridging the freedom of speech." There is universal consensus that the most important purpose of this Amendment is to protect political speech. Speech in connection with political campaigns is the essence of political speech because the primary way the American people give effect to their political preferences is by voting for one candidate over another. Accordingly, as the U.S. Supreme Court said in Buckley v. Valeo, 424 U.S. 1, 15 (1976) (per curiam), "it can hardly be doubted that the constitutional guarantee [of the freedom of speech] has its fullest and most urgent application precisely to the conduct of campaigns for political office." Click here to continue...

Public Interest Obligations

Filed comments before the FCC arguing that the switch from analog to digital signal transmission is no reason to impose additional public interest obligations on broadcasters. The Telecommunications Act of 1996 did not mandate any new regulations, and there is no connection between signal technology and program content. In this age of media abundance, broadcasters should be deregulated and given full First Amendment protection while public television should be expanded and strengthened. The comments urged the FCC to disregard the Gore Commission's recommendations for more regulation, given the well-documented shortcomings of that advisory committee. [2000]

Cross Ownership Rules

Filed comments before the FCC stating that the Commission's newspaper-broadcast cross ownership ban is counterproductive and should be repealed. The ban prohibits one entity from owning a newspaper and a radio or television station in the same market. The FCC adopted the ban in 1975 to promote diversity of viewpoints and economic competition, despite a lack of evidence that the rule was needed or would serve its stated purpose. The comments show how the media marketplace has changed, how scarcity has disappeared as a rationale for the rule, and why it would be difficult for the ban to withstand First Amendment scrutiny today. [1998]

Broadcast Indecency

Filed comments before the FCC with The Thomas Jefferson Center for the Protection of Free Expression opposing the Commission's imposition of forfeiture upon Sagittarius Broadcasting Corporation. The parties expressed their concern that Howard Stern has become a special target for the government, and took issue with the proceeding on three points:
1: The standard for judging 'indecent' material has been significantly narrowed by the Supreme Court since the Pacifica decision, and the Howard Stern broadcast now falls outside what may be sanctioned;
2: the very definition of 'indecency' remains dangerously unclear, leaving broadcasters to guess what will be sanctioned and what will not; and
3: the government has demonstrated no consistency in its imposition of sanctions against 'indecent' broadcasts, and, in its differential treatment of licensees, has not lived up to the basic guarantees of equality and due process of law. [1997]

Children's Television

Filed comments before the FCC arguing that FCC proposals to require broadcasters to air specified amounts of children's programming are unworkable and unconstitutional. The comments argued that by having already named a number of existing programs that it finds suitable, the FCC has, in effect, improperly imposed its speech views on the publishing medium of TV and, thereby, forever tainted the proceeding. [1995]

Multiple Ownership

Filed comments with the FCC arguing that the Commission's duopoly and national ownership restrictions, as well as its proposal to regulate local marketing agreements, are outdated and counterproductive. The Institute suggested that the Commission, in place of such extensive regulation, permit the market to operate freely. The public interest would not then be at significant risk, the Institute argued, because the process of station acquisition, merger, or other agreement is subject to the application and consent requirements and the Commission could continue to interpose where warranted. [1995]

Fairness Doctrine

Filed comments opposing a Petition for Emergency Declaratory Ruling before the Federal Communications Commission in company with the Radio-Television News Directors Association, the National Association of Broadcasters, and the Reporters Committee for Freedom of the Press. These comments strongly opposed a petition for a declaratory ruling that the Fairness Doctrine is statutorily mandated. The Commission did not act on the petition. [1994]

Ballot Issues

Filed a motion opposing a petition for reconsideration before the Federal Communications Commission in company with the Radio-Television News Directors Association, the National Association of Broadcasters, and the Reporters Committee for Freedom of the Press. These comments argued for the denial of a petition requesting the FCC to reconsider its elimination of the Fairness Doctrine in situations involving ballot issues. The Commission declined to reconsider the elimination of the Fairness Doctrine. [1994]

Policies and Rules Concerning Children's Television Programming (En-Banc Hearing)

Filed comments before the FCC arguing that FCC proposals to require television broadcasters to air measured quantities of government-approved children's programming are unauthorized by the Children's Television Act and in violation of the First Amendment. [1994]

Financial Interest and Sundication Rules

Filed an amicus brief in the U.S. Court of Appeals for the Seventh Circuit, arguing that the rules amount to an unconstitutional exercise of the FCC's authority and an abridgment of First Amendment freedoms. In Schurz Communications v. FCC, the court vacated the rules on non-constitutional grounds, holding that the FCC acted arbitrarily and capriciously in promulgating the rules. [1992]

Policies and Rules Concerning Children's Television Programming

Filed comments before the FCC with the Radio and Television News Directors Association, Reporters Committee for Freedom of the Press, and Society of Professional Journalists, arguing that the Commission should minimize the infringement of the First Amendment rights of information media by interpreting and enforcing the Children's Television Act of 1990 in the least restrictive manner. [1991]

Broadcast Cross Ownership

Filed with the FCC joint comments (with the Freedom of Expression Foundation) in opposition to bans on broadcast/cable and broadcast/newspaper cross ownership. [1991]

FCC Petition for Rulemaking

Filed a Petition for Rulemaking before the FCC with several other media groups, organized by the Radio-Television News Directors Association, arguing for the elimination of the Fairness Doctrine corollaries based upon the fact that the doctrine's repeal had withstood court and congressional challenges. [1990] The FCC has to date refused to eliminate the corollaries.

Political Editorializing and Personal Attack Rules (corollaries to the Fairness Doctrine)

Filed a Petition for Clarification before the FCC with several other media groups, organized by the Radio-Television News Directors Association, requesting that the Commission repeal its rules in light of its recent action eliminating the Fairness Doctrine. [1987] The FCC has to date refused to eliminate the corollaries.