|Commissioners Address Media Ownership
|1/16. Federal Communications Commission
(FCC) Chairman Michael Powell
speech [MS Word] at a Columbia Law School
on Media Ownership". Powell stated that "We will have broadcast
ownership rules at the end of this
proceeding." But, he did not say what those rules will be.
Powell stated that "We
will use this record to build a solid, legally defensible broadcast ownership
framework. No longer will our ownership rules be based on personal bias or
anecdotes about the media market. Our rules will preserve and enhance
diversity, localism, and competition. And they will do so based on the media
environment Americans experience every day -- digital, vibrant, and evolving."
Powell also stated that "Every two years, the Commission is required by law to
review these limits on ownership. And the statute requires the FCC to presume
each rule is no longer needed unless we prove otherwise. Unless we can
re-justify each broadcast ownership rule under current market conditions, the
rule goes away."
He added that "In the last
two years, four of our ownership rules were challenged in court, and each time
the rule was overturned. The court told us, in no uncertain terms, that the
legal standard for reviewing the broadcast ownership rules is a rigorous one.
Either we produce evidence that a rule is still necessary, or it must be
The statute requires that the FCC "shall determine whether any of such rules
are necessary in the public interest" and repeal those section that are no
longer in the public interest. Recently, the
U.S. Court of Appeals (DCCir) has
been remanding or vacating the FCC's ownership rules.
For example, on April 2, 2002, the Appeals Court issued its
Sinclair Broadcast Group v. FCC, remanding the FCC's local
television ownership rule for further consideration. See, story titled "DC Circuit
Remands Local TV Ownership Rule to FCC" in
TLJ Daily E-Mail
Alert No. 402, April 3, 2002.
Similarly, on February 19, 2002, the Appeals Court issued its
Fox v. FCC. The Court held that the FCC's national TV station ownership
rule (NTSO) and its cable broadcast cross ownership rule (CBCO) both violate the
Administrative Procedure Act (APA) as arbitrary and capricious, and Section
202(h) of the Telecom Act. See, stories titled "DC Circuit Vacates Cable
Broadcast Cross Ownership
Rule", TLJ Daily
E-Mail Alert No. 372, February 20, 2002, and "FCC Files Petition for Review
of Appeals Court Opinion in Fox v. FCC" in
TLJ Daily E-Mail
Alert No. 415, April 22, 2002.
FCC Commissioner Kevin
Martin gave also gave a speech
at the Columbia Law School
event. He stated that "The existing media ownership rules were crafted
to promote three principles:
competition, diversity, and localism. While the media marketplace may have
changed since those rules were first adopted, our need to promote these core
values has not."
He added that "the courts have insisted that we recognize that the media landscape has
changed dramatically since most of the broadcast ownership rules were first
enacted." He also noted that "the advent of the Internet has dramatically
changed how people send
and receive information. It now represents a significant outlet for diverse
views, as well as an important source of news and information to consumers."
See also, the FCC's Media Ownership
Policy Reexamination web site.
|4th Circuit Rules First Amendment Includes
Right to Receive Information
|1/16. The U.S.
Court of Appeals (4thCir) issued its
[16 pages in PDF] in Rossignol
v. Voorhaar, a Section 1983 case involving interpretation of the
First Amendment. It held that the Constitution protects "the intended
recipients' right to receive that information and those ideas".
Rossignol publishes a small weekly newspaper in a small rural county in
southern Maryland. Off duty, plain clothes sheriff's deputies traveled around
the county the night before an election and systematically bought up every copy
of the newspaper they
could find. Rossignol was a long time critic of the incumbent Sheriff and
others. The purpose of the purchases was to keep the voters from reading the
election day issue.
Rossignol filed a complaint in U.S.
District Court (DMd) against the Sheriff, Richard Voorhaar, and others, alleging
violation of 42 U.S.C. § 1983,
which provides a civil cause of action for violation of civil rights. The District
Court found that the defendants did
not act under color of state law, as required by the statute, and dismissed. See,
199 F. Supp. 2d 279. Rossignol appealed.
The Court of Appeals reversed. It found that the defendants did act under
color of state law. However, more importantly, it found that there is can be a
First Amendment violation where newspapers are purchased, and no effort is made
to stop publication.
The Court wrote that "the fact that defendants paid for the
newspapers in no way affects the conclusion that the seizure violated
plaintiffs' right to disseminate core political speech. ... The First Amendment
is about more than a publisher's right to cover his costs. Indeed, it protects
both a speaker's right to communicate information and ideas to a broad
audience and the intended recipients' right to receive that information
and those ideas. Bd. of Educ.,
Island Trees Union Free Sch. Dist. No. 26 v.
PICO, 457 U.S. 853, 867 (1982). Liberty of circulation is as important to
freedom of the press ``as liberty of publishing; indeed, without the circulation,
the publication would be of little value.´´
Lovell v. City of Griffin, 303
U.S. 444, 452 (1938) (quoting
Ex parte Jackson,
96 U.S. 727, 733
(1877))." (Emphasis and parentheses in original.)
The Court did not cite that other old and famous case involving the
right to hear,
Red Lion v. FCC, 395 U.S. 367 (1969). The Supreme Court wrote in that case
that "It is the right of the viewers and listeners, not the right of the
broadcasters, which is paramount."
The Rossignol case is a 21st Century reaffirmation of the principle that freedom
of speech encompasses a right in the recipient to receive information. Moreover,
this case stands for the proposition that otherwise lawful commercial
transactions (i.e., buying things) can implicate First Amendment rights.
This may have some importance to technology, because historically, the
principle of the right to receive information has been at the heart of efforts
by the Congress and the Federal Communications
Commission (FCC) to regulate or mandate certain speech, and to impose media
ownership rules. The latter topic is currently being reviewed by the FCC. That is,
buying things (i.e., other media outlets) may decrease the diversity of voices, and
hence, implicate the public's right to receive diverse viewpoints and types of
Chief Judge Harvie Wilkinson wrote the opinion. Born in 1944, and appointed
to the 4th Circuit in 1984, Wilkinson has long been considered by Court watchers
to be a possible nominee to the Supreme Court in any Republican administration.
|WTO Appellate Body Holds Byrd Amendment
Inconsistent With WTO Agreements
|1/16. The World Trade Organization (WTO)
Appellate Body released its report upholding a WTO Panel's finding that the US
Continued Dumping and Subsidy Offset Act of 2000, which is also known as the
CDSOA or the Byrd Amendment, is inconsistent with certain provisions of the WTO
agreements on anti-dumping and on subsidies because it is a specific action
against dumping or a subsidy. See, 119 page report in
(442 KB) or
The Appellate Body reversed the Panel's finding that the Byrd Amendment is
inconsistent with other WTO provisions relating to the support required for
initiating an investigation.
EU Commissioner for Trade
Pascal Lamy (at
right) stated in a
release that "The EU and 10 other countries had maintained that this measure
clearly flies in the face of the letter and the spirit of WTO law. This was our
conviction from the outset and I am glad that the Appellate Body has now clearly
and definitively condemned this measure. We now expect the US to act quickly in
order to repeal the Byrd amendment."
The Office of the U.S. Trade
Representative (USTR) stated in a
release [PDF] that "We welcome the findings in today's report that the Act is
consistent with the WTO requirements for the initiation of anti-dumping or
countervailing duty investigations. We are still reviewing that report, but we
note that since the dispute did not involve the underlying U.S. anti-dumping and
countervailing duty laws, the United States will continue to vigorously enforce
those laws to ensure that U.S. industries, farmers, and workers are not forced
to compete with unfairly traded imports. We are however disappointed with the
Appellate Body's findings concerning the funds disbursed under the Act."
The USTR added that "The United States has been a leader in supporting rules-based
dispute settlement in the WTO. Therefore, in this case as in others, the United
States will seek to comply with its WTO obligations. We are reviewing the report
to assess the best compliance options, and will discuss these with the Ways and
Means and Finance Committees, and all other interested members of Congress."
Sen. Charles Grassley (R-IA),
Chairman of the Senate Finance
Committee, which has jurisdiction over most trade issues, also reacted. He
said in a release that "the Byrd amendment was slipped into an appropriations
conference report without full debate in the Senate. The Finance Committee, as
the committee of jurisdiction, never had a chance to review the amendment. I'm
not surprised that a bill that was never considered by the committee of
expertise or even the full Senate is found to violate our international
commitments. That's why we have committees -- to make sure things like this
|IRS Launches Free File
|1/16. The Department of Treasury
(DOT), Office of Management and Budget
(OMB), and Internal Revenue Service
(IRS) announced details of IRS Free File,
which pertains to preparing and filing federal tax forms online.
Acting Treasury Secretary
Kenneth Dam stated in a
speech that "In our
technologically advanced economy, electronic transactions are nearly
ubiquitous. With Free File, the federal government is finally catching up to the
nation we strive to support."
On October 30, 2002 the Internal Revenue
Service (IRS) and Free File Alliance (FFA) signed a
pages in PDF] titled "Free On-Line Electronic Tax Filing Agreement". The FFA is
a consortium of companies in the electronic tax preparation and filing industry,
organized as a non-profit corporation to facilitate participation in this
agreement. The agreement provides that "The
Consortium will offer Free Services to taxpayers. The IRS will provide taxpayers
with links to the Free Services offered by the Consortium Participants through a
web page ... which will be hosted at irs.gov accessible through firstgov.gov.
During the term of this Agreement, the IRS will not compete with the Consortium
in providing free, online tax return preparation and filing services to
The Treasury Department and OMB stated on January 16, 2003 that "Each Free
File Alliance member company sets taxpayer eligibility requirements for its own
program. These requirements will differ from company to company. Generally,
eligibility will be based on factors such as age, adjusted gross income, state
residency, military status or eligibility to file a Form 1040EZ or for the
Earned Income Tax Credit. The agreement requires the Alliance, as a whole, to
provide free services for at least 60 percent or 78 million of the nation’s
taxpayers during each filing season. As of January 16, 2003, the industry has
exceeded that requirement. The number may fluctuate throughout the filing season
as Alliance membership and offers change. The primary candidates for Free File
are those taxpayers who prepare their own taxes and still file paper returns.
Last filing season, the IRS received nearly 85 million paper returns and nearly
47 million e-filed returns." See,
Treasury release and
OMB release [PDF]
Sen. Charles Grassley (R-IA),
Chairman of the Senate Finance
Committee, which oversees the IRS, stated in a release that "I’m glad to see
the IRS has seen the light on one of the most common criticisms of electronic
filing -- that it’s too expensive -- and is advancing an effort that should
provide free electronic filing to tens of millions of Americans. This is good
news. A successful electronic filing program is something I've wanted for years.
It should free up IRS staff and make it easier for the IRS to deliver the high
quality customer service that taxpayers expect and deserve. It's also important
that paper filing continues to be an option indefinitely for taxpayers who don't
have to access to computers."
See also, story
titled "IRS Enters Into Agreement with Electronic Tax Preparation Consortium"
in TLJ Daily
E-Mail Alert No. 539, October 31, 2002.
|District Court Issues Ruling in Total
Information Awareness FOIA Suit
|1/16. The U.S. District Court
(DC) issued an opinion
[18 pages in PDF] in EPIC
v. Department of Defense, a
Freedom of Information
Act (FOIA) case involving a request for records about the
Defense Advanced Research Projects Agency's (DARPA)
Information Awareness Office (IAO), and
its program called Total Information Awareness (TIA). The Court held that the
Electronic Privacy Information Center (EPIC)
qualifies as a representative of the news media for the purposes of the FOIA,
and thus is entitled to preferential fee status.
The EPIC submitted a FOIA request to the Department of Defense (DOD)
requesting records of the DARPA. The DOD sought to charge EPIC fees for
complying with this FOIA request. Charging fees -- sometimes excessive fees --
for searching for and copying records is a tactic employed by some federal
agencies to deter persons from exercising their rights under the FOIA.
EPIC filed a complaint in U.S. District Court (DC).
The FOIA allows agencies to charge fees. However, it also provides an exception
for representatives of the news media. Courts have interpreted this exception
broadly. See for example, National Security Archive v. DOD, 880 F.2d 1381
(D.C. Cir. 1989).
The EPIC filed a motion for preliminary injunction in which it argued that it
qualifies for the "representative of the news media" exception. The Court held
that "EPIC satisfies the definition of ``representative
of the news media´´ ... EPIC's regular
publication and dissemination of its biweekly electronic newsletter, as well as
the publication of seven books, qualify it for preferred fee status."
Tech Law Journal is instituting several new practices and procedures with the
New Year. All of these changes have one central purpose -- protecting the rights
of the author, David Carney.
The Tech Law Journal web site and the Tech Law Journal Daily E-Mail Alert
(TLJ Alert) are both authored and published by David Carney. This is a business.
The sole source of revenue for this business is subscription payments for the
TLJ Alert. Yet, it is currently being widely infringed.
This is undermining the financial viability of the business.
from the Publisher, which summarizes the new practices and procedures.
Subscription Information page for price schedule, methods of payment, and
regarding "E-Mail Monitoring".
regarding "Disclosure of Information to Third Parties".
to law students explaining why free subscriptions for law students will end
after the January 17 issue.
of state officials' subscriptions" explaining why free subscriptions for
state government officials will end after the January 17 issue.
Form and Contract (for
firms, companies, groups, and other entities), or the shorter
Form and Contract (for
persons subscribing individually). These contracts are for new paying
subscribers, and paying subscribers renewing their
subscriptions. Persons receiving free subscriptions (journalists
and government officials) should not sign a contract. Paying
subscribers whose subscription term has not expired should not
sign a contract, until their existing subscription term expires
and they resubscribe.
And finally, see revised
|Friday, January 17
9:30 AM. The Senate
Governmental Affairs Committee will hold a hearings on the nomination of
Tom Ridge to be Secretary of Homeland Security. Location: Room 342,
EXTENDED AGAIN, TO FEBRUARY 18.
Extended deadline to submit reply comments to the
Federal Communications Commission (FCC) in
response to its
Notice of Proposed Rulemaking (NPRM) [15 pages in PDF] in its proceeding
titled "In the Matter of Digital Broadcast Copy Protection". This NPRM
proposes that the FCC promulgate a broadcast flag rule, and seeks comment on
this, and related questions. This is MB Docket No. 02-230. See,
FCC release [PDF] and
Order [PDF] of October 11, 2002 extending deadlines. See also,
Order [PDF] of January 3, 2003.
|Monday, January 20
|Martin Luther King Day. The FCC will be closed. Legal holiday.
The Securities and Exchange Commission's
(SEC) final rule
providing relief for Internet investment advisers goes into effect. The rule
exempts certain investment advisers who provide advisory services through the
Internet from the prohibition on SEC registration. The rule change permits
advisers whose businesses are not connected to any state to register with the
SEC instead of with state securities authorities. See also,
notice in Federal Register,
December 18, 2002, Vol. 67, No. 243, at Pages 77619 -77626, and story titled
"SEC Amends Rule for Internet Investment
Advisers" in TLJ Daily E-Mail Alert No. 568, December 16, 2002.
For more information, contact Marilyn Barker or Jamey Basham 202
|Tuesday, January 21
|12:00 NOON. The Federalist Society
will host a press conference titled "Federalism, Preemption & the Supreme
Court ". For more information, contact Julie Walker at 202 822-8138.
Location: Holeman Lounge, National Press Club, 529 14th St. NW, 13th Floor.
12:30 PM. Sen. Ted Kennedy (D-MA)
will speak at a National Press Club (NPC)
luncheon. Location: Ballroom, NPC, 529 14th St. NW, 13th Floor.
|Wednesday, January 22
|5:00 PM. The FCBA's
Diversity Committee and Young Lawyers Committee will host a Law School
Outreach Program at the University of Baltimore for law students interested in
practicing communications law.
6:00 - 8:00 PM. The FCBA
will host a CLE seminar titled "The Transition to Digital Television".
The price to attend is $60 for FCBA members, $50 for government/law student members,
and $80 for
non-members. Registrations & cancellations are due by 5:00 PM on January
RSVP to Wendy Parish firstname.lastname@example.org.
Location: Wiley Rein & Fielding Conference
Center, 1750 K Street, NW, 10th Floor.
|Friday, January 24
|Deadline to submit comments to the Federal
Communications Commission (FCC) regarding the Tier III Coalition's
petition to forbear, up to December 31, 2005, from enforcing the E911 accuracy
and reliability standards set forth in § 20.18(h) of the FCC’s Rules with
respect to Commercial Mobile Radio Service (CMRS) provided by Tier III
wireless carriers. See,
FCC notice [PDF]. This is WT Docket No. 02-377.
|About Tech Law Journal
|Tech Law Journal publishes a free access web site and
subscription e-mail alert. The basic rate for a subscription
to the TLJ Daily E-Mail Alert is $250 per year. However, there
are discounts for subscribers with multiple recipients. Free one
month trial subscriptions are available. Also, free
subscriptions are available for journalists,
federal elected officials, and employees of the Congress, courts, and
executive branch. The TLJ web site is
free access. However, copies of the TLJ Daily E-Mail Alert are not
published in the web site until one month after writing. See, subscription
Contact: 202-364-8882; E-mail.
P.O. Box 4851, Washington DC, 20008.
Copyright 1998 - 2003 David Carney, dba Tech Law Journal. All