Category Archives: Media Law

FCC to fine Comcast for blurring line between news, ads

News reports say the Federal Communications Commission is proposing to fine Comcast $4,000 “for airing a pitch for a sleep aid without telling viewers that the spot was financed by the maker of the product . . .  the first time a company has been sanctioned for airing a video news release.”  

Here is the FCC order.

An article from Advertising Age quotes Sena Fitzmaurice, Comcast’s senior director-corporate communications, as calling the company “perplexed” by the action.

“The relevant statute does not cover cable programming, and even if it did, CN8’s programming was entirely consistent with the statute,” (Fitzmaurice told AdAge). “The segments in question were chosen by journalists in the course of reporting, and Comcast received no consideration or benefit by using the material. We will reiterate these facts in our response.”

The AdAge article traces the roots of the controversy about video news releases to:

 “before the 2004 election when the Department of Health and Human Services produced a video news release for a Medicare prescription drug benefit not due to take effect until 2005 . . . The Center for Media and Democracy along with another group, Free Press, eventually filed complaints with the FCC about 111 TV stations and cable providers running video news releases without identification, including Comcast. Last night’s action was the first response by the FCC to the complaints. “

‘Compromise’ shield law weaker than DOJ rules

The New York Times is throwing its weight behind a “compromise” federal shield law whose protections are described by by Times reporter Adam Liptak as:

“weaker than those in almost all of the 49 states that shield journalists from state actions through statutes and judicial decisions. They are also weaker than the protections in the Justice Department’s own guidelines for issuing subpoenas to journalists.”

The bill is cosponsored by Sen Charles Schumer, D-NY, and Sen. Arlen Specter, R-PA. “This bill can pass,” Schumer tells the Times which — according to the article — supports the new bill along with “scores of news organizations.”

I am not supportive of a federal shield law. I think mass media performed shamefully in the lead up to the Iraq War. The national press corps was complicit in misleading the nation into war by repeatedly reporting the lies told them by “persons speaking under condition of anonymity.” 

I would guess a majority of professional journalists want a federal shield law. When Congress was considering stronger proposals were earlier in the year I argued against those laws, and more than once said that professional journalists deserve no protection not afforded any other American.

But if mass media are content with this legal fig leaf why bother arguing. The bill’s protections are as pathetic as the press’s pre-war performance. Perhaps that’s the justice in all this.

Everyone a journalist, yes. Shield law for all, no

tn_scott-gant.jpg Washington attorney Scott Gant says “We’re All Journalists” in his new book of the same name that likens bloggers to the revolutionary war pamphleteers and predicts that a more democratic media will transform society.It’s a provocative thesis and one that I’m predisposed to share. Oddly enough, however, I learned of Gant’s book through an e-mail that offered him as an advocate of the proposed federal shield law for reporters (see H. R. 2102 for text of bill).

I do not favor a federal shield law because it sets journalists apart from other citizens and encourage them to rely on sources whose identities and motives cannot be weighed. A better way to bring corruption to light would be to protect whistleblowers. A whistleblower protection bill is crawling through the House — with little or no support from a mass media obsessed with its shield law.

Despite my misgivings about the shield I went looking for Gant’s writing and found a recent Washington Post op-ed article in which he said the most notable thing about the current House shield law is that it:

“adopts a dramatically broader view of journalists — and of journalism. The bill’s safeguards apply to anyone engaged in ‘the gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.’ The sponsors of this legislation resisted calls to regard journalism as something carried out only by employees of established news organizations.”

Gant goes on to tell Post readers that:

“the First Amendment has always been a right and a privilege that belongs to all citizens. Yet the century that preceded the emergence of the World Wide Web appears to have hardened an artificial distinction between professional journalists and everyone else.”

Amen Brother Gant! I’m a newspaper guy who believes as you do in this regard.

But I don’t like this shield bill just because it defines journalist to include bloggers. It’s not that I don’t trust bloggers. It’s that I don’t believe the public should don’t trust so-called professional journalists after the Valerie Plame affair.

That soap opera exposed how the media elite trade whispers and rumors with the government officials they supposedly monitor. That prominent journalists were ordered to reveal their sources is of far less consequence than the fact that they allowed themselves to be used in a slander campaign that helped mislead the United States into the Iraq War.

During the 1970s Watergate scandal the press used anonymous sources to speak truth to power. During this most recent shameful period of the Plame affair, the powerful used anonymity to speak lies as if they were truth — with the complicity of the press.

Journalism is — or should be — about the discovery and arrangement of facts and arguments. The problem with secret sources, and why they should be used rarely, if ever, is that the motives of secret sources cannot be considered by the reader. When a journalist uses a secret source it is the equivalent of saying, “Trust me.” Maybe it’s necessary to do this at times. But it should be rare.

Creating a federal shield law that makes anonymous sourcing a standard part of the journalistic toolkit — and then extending this definition of journalism and protection to every blogger — will accelerate the debasement of journalism, which is losing track of its mission of gathering verifiable facts and sliding into the realm of opinion.

 

 

 

 

 

 

Fat in the fire: self or gov’t rules on kid food ads?

I have been following the twin complaints that media programming encourages obesity and violence, especially in children. The series started with a blog entry on media control. It continued with a piece about video game addiction and went on with a note about Representative Ed Markey (D-Mass) pressuring advertisers to adopt a healthier tone in food ads to kids.

 

Last week Advertising Age reported that a task force formed by members of the U.S. Senate and the Federal Communications Commission had delayed a meeting because “it will be outdated due to upcoming initiatives from food marketers to be unveiled at a Federal Trade Commission/Department of Health and Human Services workshop July 18.”

 

A story in Broadcast & Cable magazine said Markey wasn’t happy with this delay, thinks self-regulation is insufficient and wants the FCC to make rules for television food ads now.

 

Obviously a lot of heat on this issue. Stay tuned.

 

In a related development, in a piece written for the Greentree Gazette (a controlled-circulation publication aimed at IT managers in higher education) Dr. Bernard Luskin that argues technology shortens attention spans and desensitizes us to violence. I can’t link to the piece; it appears to be print only.

 

These are not new complaints nor can Luskin prove causality but the argument appeals to me — though I wouldn’t know how to prove it or what to do if I could.

 

Other than a propensity to believe this notion, I pass on the thought because Luskin is interesting. He is an entrepreneur turned educator who played a central role in one of the big early 1990s tech stories about the Compton’s Multimedia Patent — which I covered back in the day. As Wikipedia notes: “In 1994, Compton’s shocked the computer world by asserting a software patent of dubious validity that was later cancelled by the Patent Office.”

 

Luskin was the guy who argued for that patent. I met him this spring for the first time at an event organized by the Society for New Communications Research and we talked about that now-ancient patent fracas. I wasn’t then aware of his interest in media effects on behavior but given my similar concerns our paths may cross more frequently than they had.

Doctors’ group says study video game ‘addiction’

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Following on the media regulation theme that I noted in prior postings (here and here), the American Medical Association issued a statement Thursday calling for:

“more research on the long-term beneficial and detrimental effects of video game and Internet use, as well as a review of the current video game ratings system.”

The AMA statement noted shortcomings in the video game ratings in effect since 1994, saying:

“Research from a variety of sources, including the U.S. Surgeon General, links children’s exposure to media violence with increases in aggressive and violent behavior. Concern about this system’s effectiveness in alerting parents to violence and age appropriate content has led to attempts at both the federal and state levels to enact regulation of video game content and to better control the sale of inappropriate video games to minors. “

The U.S. Senate Commerce Committee apparently held hearings Tuesday on “The Impact of Media Violence on Children.” Here is a snippet from the hearing advisory:

“The Impact of Media Violence on Children hearing will focus on issues related to the impact of violent television programming on children, including issues raised by the recently released Federal Communications Commission (FCC) report, Violent Television Programming And Its Impact On Children.” (Link to 39-page PDF)

Markey pressure food advertisers to cut the fat

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Media overload — and the public policy response — is a favorite topic.

I recently mentioned the Kaiser Family Foundation report titled Children, Parents, Media that looks at media exposure as a public health issue. It found that “two-thirds of parents would support more stringent federal regulation of television content.”

 

Apropos of that, Congressman Ed Markey last week challenged Coca-Cola, General Mills,Kraft Foods, McDonald’s and PepsiCo to “voluntarily implement the same restrictions on marketing to children recently announced by the Kellogg Company.” (See Kellogg Media Room and look for the June 14 material titled, Kellogg Strengthens Marketing Practices to Children.)

 

Markey, who chairs the House subcommittee on telecommunications and the Internet, held hearings Friday (June 22) “to explore the link between TV advertising and childhood obesity, and whether regulatory or legislative solutions are needed to restrict food marketing on television to combat the serious public health issue of childhood obesity.” The hearings were titled, “Images kids see on the screen.” I haven’t yet found any of the materials presented at the hearings but will link to them when/if I do.

In a related development the laissez faire Progress and Freedom Foundation, last week issued a booklet titled “Parental Controls and Online Child Protections” that provides an overview of the tools available to let parents filter media consumption and lays out the political argument for “regulation” by the family rather than by the Congtess. Says author Adam Thierer:

“there has never been a time in our nation’s history when parents have had more tools and methods at their disposal to help them decide what is acceptable in their homes and in the lives of their children . . .  as we move from a ‘community standards’ approach (one-size-fits-all) to one of ‘household standards’ (individually tailored)”

Captain Marvel loses to Man of Copyright

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Captain Marvel (left) is shown here battling Superman. But the fact is that the Man of Steel won a copyright battle in the 1940s and 195os that cemented his position as a modern icon — and relegated his rival to the category of used-to-be’s.

 

The fate of these muscular fictions was decided in a 1951 U.S. Supreme Court decision (see the Wikipedia entry for fascinating trivia). What was lost? Well, for one thing the word, “Shazam” isn’t as popular as it might have been had Captain Marvel continued to summon his powers on television by appealing directly to “the elders that empowered him: Solomon, Hercules, Atlas, Zeus, Achilles, and Mercury.

 

Of course all that is in the past. But what is being lost or gained today by the application of current copyright law?

 

Copyright protection does not seem to have protected professional creators, be they writers or artists of any stripe. The explosion of user-generated content is their chief competition; getting noticed over the chaos of creativity enabled by modern technology is their prime chore. Copyright matters little in clearing those hurdles in today’s Attention Economy.

 

Instead, copyright seems to be the tool that corporate brands use to suppress new modes of delivery. For instance, Wired News commentator Eliot Van Buskirk laments about royalty rates “up to $110 per online listener each year” being levied on Web sites that re-broadcast radio.

 

My friend, Berkeley blogger Dan (Infospigot) Brekke, wrote a cute piece for Salon titled “Tangled up in Seuss” about a musician who dared to parody “Green Eggs and Ham” in the voice of Bob Dylan — only to recant the work after a legal challenge by the Cat in the Hat. Hmmph.

 

Many words have been spilled over the future of copyright. The Progress and Freedom Foundation, a think tank that favors laissez fair solutions, held an April panel discussion and issued a transcript of that proceeding, along with a summary. But I’ll be damned if there was a common thread.

 

Stanford professor Lawrence Lessig is the anti-copyrighter, the prophet of mashup culture and the inspiration behind the Creative Commons alternative rights protection regime. But I think that movement is floundering, except in the sense of rage against the machine.

 

Last fall I read a Columbia Journalism Review article titled “Copyright Jungle” that tried to put the whole mess into perspective. Written by University of Virginia professor Siva Vaidhyanathan the article concludes:

 

“Copyright was designed, as the Constitution declares, to “promote the progress” of knowledge and creativity. In the last thirty years we have seen this brilliant system corrupted and captured by the very industries that the old laws fostered. Yet the complexity and nuanced nature of copyright battles make it hard for nonexperts to grasp what’s at stake.”

It’s enough to make a fella say, “Shazam.”