FCC Chairman Michael Powell has launched a blog [As Dave Barry would say: I'm not making this up] (Michael Powell Joins the Blogosphere). So what does the chairman have to say in his first post? Well, he reiterates his commitment to deregulation, that is, when it doesn't upset entrenched interests too much.
Our struggle to define appropriate regulatory regimes to promote innovation is not limited to the telephone sector. The Commission's digital television transition is yet another example of how difficult the struggle can be.Yeah, the broadcast flag is really going to promote innovation. Why, just think of the useless technology developed because television was an open platform! To borrow some concepts from Prof. Frink, "I predict that, if the FCC were in charge of developing the VCR, that within 100 years a VCR will record twice as much programming, be 10,000 times larger, and so expensive that only the five richest moguls in Hollywood will own them."
For example, I need to hear from the tech community as we transition to digital television. It may be possible to deploy innovative wireless services in the unused spectrum between broadcast stations (for example, there is no channel 3 or channel 6 here in San Francisco)...Broadcasters, however, claim these unused channels as "their" spectrum. Yet a public policy that favors innovation and experimentation would seek to open these unused channels to develop new wireless services…just look at how much value has been created in the sliver of spectrum that has become Wi-Fi! If the high-tech community believes that new digital technologies will enable this kind of new thinking about and use of spectrum, then I need to know that.*ahem* Chairman Powell, it may be possible to deploy innovative television services based upon an open television platform. Broadcasters, however, claim that they must control and direct development of a closed platform, that the platform is "theirs" and requires a "broadcast flag." Yet a public policy that favors innovation and experimentation would seek to open the platform to develop new services…just look at how much value has been created in the open analog television platform! Many in the high-tech community believe that new digital technologies will enable this kind of new thinking about and use of an open television platform. *ahem*
Regulated interests have about an 80 year head start on the entrepreneurial tech community when it comes to informing regulators what they want and need, but if anyone can make up for that, Silicon Valley can. This is important not just for Silicon Valley—it's essential to insure that America has the best, most innovate communications infrastructure.You know, unless it upsets Hollywood. Because Hollywood will ensure that America has the best, most innovative communications infrastructure.
via JD Lasica
UPDATE
Jeff Jarvis has some harsh words for Powell's "blog" (Daily Stern - July 9, 2004).
Telepocalypse discusses why DRM is bad for communication networks (DRM - enemy of telecom):
Ultimately, telecom is about communications, not media. DRM inhibits communications. That’s the opposite of what you’re after. If we’d had DRM before the Internet became widely available, telcos would have sold a lot less dial-up and broadband, and the industry would have even more unlit fiber than it does today.
Apparently, once again, the major broadcast networks will be scaling back political convention coverage, according to The Hill (TV to snub conventions). As I've noted recently, I think the "news" coming out of the conventions should get a lot less coverage (Blogging the Political Conventions). However, I must confess a bit of schadenfreude when I read The Hill article. Read on...
The Republican and Democratic parties hope to nudge the networks into more live coverage, but broadcasters have concluded that there will be little news to report.And rightfully so. Not to mention that you never know when some politician will blurt out the f-word and get the broadcaster fined by the FCC. I mean, heck, if the VP will cuss on the floor of the Senate, where won't a politician use indecent language?
“We know we’re going to cover the nomination and the [nominee’s] speech,” said one network’s spokeswoman, but “we’re not sure about the first two days.”That's pretty much the only thing most people care about anyway.
This [reduced coverage] is a significant challenge for candidates. Kerry must use the convention to define himself before a national audience, presenting his carefully packaged image as a veteran and a leader, and overcome characterizations in Bush’s TV ads that he is a flip-flopper, observers say.Yeah, this explains Kerry's high profile recently, as Jeff Jarvis notes (Voting against). But it is not just the Democrats.
Democrats and Republicans will continue talks with the networks this week and plead for more coverage.Ha ha ha. Pleading for coverage. Ha ha ha. Sorry, another schadenfreude moment. How pathetic. Is this what our politics has become? Perhaps the political parties ought to stop sucking up to the glass teat and instead seek to explode it. Of course, the parties are reaching out to alternative news sources.
MTV, Comedy Central and ESPN will also be producing convention shows.Nothing says inconsequential circus like coverage by these three networks. Do the parties think that coverage by MTV makes them more relevant? Heck, MTV isn't relevant to anyone who's eligible to vote. Rather than pandering to entertain us, the parties might think of becoming more relevant by actually trying to be relevant.
If the networks skip the first half of the convention, they would miss events likely to create buzz in Washington.And we should care about buzz in Washington, why? I'll bet studies will show that TiVo users fast-forwarded through most of the speeches in order to watch the commercials. However, at least some politicians are honest about this charade.
“They are much less important than everyone thinks … unless you own a hotel,” said Rep. Barney Frank (D-Mass.).Maybe, one of these years, one of the political parties will note that sucking up to the mass media monster they have created through the FCC isn't really helping them (or us) and we'd be better off with a more decentralized distribution network.
Reuters is reporting that the FCC is going to fine Viacom $550,000 for Janet's nipple flash on the SuperBowl (Jackson Breast Flash May Get $550,000 Fine-Source). Jeff Jarvis notes that this would mean Janet completely topless would rate a million (The Daily Stern: The million-buck boobs). Ba-dump-bump. But, seriously folks, the decision isn't final and the Commissioners still have to vote on it. What intrigues me, however, is that the fine lawyers at the FCC apparently have argued that the 20 stations owned by Viacom should pay the maximum fine allowable, but the stations that aired the incident but were not owned by Viacom pay nothing. I have a feeling that at least one of the commissioners will complain about that, but let's think about possible reasons for that distinction:
Prof. Susan Crawford has been breaking and following some monumentally important stories recently. Her latest regards one of my favorite federal agencies, the FCC, and the huge power grab it is considering exercising with regard to the internet. This is no joke, the FCC is considering regulating everything that uses the IP protocol (Nethead/Bellhead -- Noticing DHS). If you think this is just about the big telecoms, you're wrong:
"[National Security/Emergency Preparedness] NS/EP considerations provide a compelling rationale for applying a certain amount of regulation to IP-enabled services. The purpose of such regulation would be to ensure the prioritized availability of certain communication services to Federal, state, and local officials and first responders in times of emergency or national crisis."Crawford is quoting from the Department of Homeland Security filing in the IP-related services proceeding (In the Matter of FCC Review of Regulatory Requirements for IP-Enabled Services: Comments of the Department of Homeland Security [PDF] The fun part of this document is that it won't let you copy/paste).
How much regulation is necessary?
"In the event of crisis, NS/EP national leadership must receive end-to-end priority treatment over other users. . . . NS/EP traffic must be identified with its own class of service -- above and beyond "best effort."This, of course, would mean the end of end-to-end as IP providers would have to check packets to see if they were specially marked by the government (which would require all sorts of checks so that we could be sure the packets hadn't been spoofed and what not). Basically, we would have to build into the internet a smart network. Once you've done that, all sorts of other regulations become possible.
As Crawford notes, all of this would be done in the name of national security. You're not against national security, are you?
Nearly a month ago, FCC Commissioner Jonathan S. Adelstein gave a speech at a conference sponsored Children NOW, Digital TV: Sharpening the Focus on Children. You can read Commissioner Adelstein's speech here: Before the Children NOW Digital TV Conference, June 9, 2004, Washington, DC [PDF]. Below are some parts of the speech I felt telling (this isn't line-by-line, I skip much of the speech). Read on...
Think about it. Parents wouldn’t let their children wander by themselves through a neighborhood they don’t know. But many parents let their kids do just that with their minds through TV.Perhaps this is because the FCC has given parents the impression that the FCC will take all the naughty bits off of television and make it safe for children.
Among other dangers, it turns out these neighborhoods are filled with slick storekeepers trying to lure kids in to buy candy, junk food and violent games. Not every street is Sesame Street. Clearly, some people in the neighborhood don’t have your kids’ best interests in mind.Sounds like the internet. Oh, wait, on the internet it is the parents who are expected to protect their children, not the government.
The FCC’s job is to make sure TV has safe places for children – and that parents know how to keep their kids out of the dangerous places -- and out of candy stores.However, heaven forbid that the FCC would help parent's have effective tools to create safe places for their children. That's the government's job. You could give tools to the parents to do the job. For example, you have filters for the internet, which fail because the material on the internet is virtually infinite, but on the much smaller realm of broadcast, you don't have similar tools. But, better that the FCC do it for you.
Parents, be warned: the cops on the beat aren’t on top of the new developments in the neighborhood.We admit it! We can't do the job.
So let’s make sure that tomorrow’s digital television has more safe neighborhoods to wander in. Let’s insist on more informative, educational, healthy choices for our children.You know, because the markets apparently won't supply it. For some strange unknown reason, demand for these programs is low. Must be a failure of capitalism or something.
Broadcasters are the landlords of the television landscape. But the FCC is supposed to protect the public against the natural tendencies of corporations to seek out the bottom-line above all else.If broadcasters are landlords, it is because the FCC has made them so. Normally, we figure that the market, seeking the bottom-line, is in the public's best interest. However, if the government creates a screwed-up oligopoly structure, then the government has a reason to step in to regulate it. Bonus.
Broadcasters’ bargain with the government is that in exchange for free use of the public airwaves, they are supposed to serve the public interest....But the FCC provides very little assurance that all broadcasters will do so. It has so weakened the specific public interest obligations that broadcasters don’t have much left to prove. It’s time to restore these public interest obligations for the new era of interactive, digital TV.How convenient that the government has structured regulations such that broadcasters must have a "public interest." After all, look at how badly cell phone spectrum is being abused without "public interest" obligations. And other than keeping naughty words off the air, what, exactly is the public interest? Who is to determine it and why? If we can figure out what the correct market for public information material is for broadcast, can we apply the same analysis to other media? Can we determine the public interest in newspapers, periodicals and books? If we determine that there not enough educational children's books being published, should the government step in and require more?
Digital TV promises to enhance the TV world for everyone, including children. Broadcasters can turn today’s single analog channel into 5 or 6 channels. This makes room for more programs to educate, inform, and inspire our nation’s children.Heck, it makes room for more programs to educate, inform, and inspire our nation's adults. More educational programming for adults, I say! I mean, why should the children be the only ones who benefit from the "public interest" obligations? I want some more benefit too! Don't I count?
And, as Senator Brownback said this morning, datacasting can give parents real-time ratings and content information so they know what their kids are getting – and can keep them out of the candy store if they want.But, if the parents have access to all this information, what use will the FCC have in regulating indecency? I wonder why Adelstein doesn't mention this. Or, bonus, we get better rating information and we still regulate speech! Indeed, why isn't Adelstein pushing such information right now?
Broadcasters should use this capability to expand the diversity and quality of programming. They should use this opportunity to empower parents.Indeed they should. However, who will decide if they have or not? Adelstein, of course. Also, I thought that the FCC had the ability to regulate these things.
I firmly believe that new horizons in broadcasting should correspond to new horizons in serving the public interest. So we at the FCC must do our part. The FCC must urgently define the new rules for the digital era, and that includes children’s television.Where was this guy when they invented the printing press? Just imagine if we set certain public interest obligations for the printing press as "new horizons" appeared. The world would be a better place, I tell you.
Six years ago, some broadcasters recognized that to the extent that multicasting expands broadcasting opportunities, the public interest obligations should also expand.The more freedom, the more government regulation is necessary. Yes, indeedy.
Many issues involving children’s TV involve the complex relationships between electronic media and a child’s cognitive, social, emotional and physical development. Much more research needs to be done on how interactivity affects the balance.Now the FCC will figure out the best way for us to raise our children. All praise the FCC!
It's about time we started. We can’t let our children venture into an unknown, unprotected digital media environment – all because the FCC didn’t do its job.You know, because the internet has been such a tremendous failure for children. It has ruined them.
Yesterday, I responded to Declan McCullagh's die, FCC, die rant (Why the FCC should die) by saying that the FCC shouldn't be eliminated but re-chartered to promote open spectrum (Mend the FCC, Don't Abolish It).
Perhaps I am wrong as it seems that two economist bloggers support McCullagh's reasoning. Marginal Revolution simply agrees (Abolish the FCC). Winterspeak reiterates the point that spectrum should be privatized and auctioned off (Can the FCC). Neither considers the open spectrum model.
On LawMeme, however, James Grimmelmann does, referencing four distinct but related articles (Four Stories About Spectrum).
One of the articles is by David Isenberg on Wireless Unleashed, who rather conclusively demonstrates why the property/fee simple model of spectrum regulation doesn't make a lot of sense (Abolish the FCC -- but for a different reason).
UPDATE 1430 PT
Moore's Lore: That's Another Fine Mess (Interesting idea - worth thinking about, though probably not a winner - move the FCC into the judicial branch).
Prof. Michael Froomkin had a neat little post last week about the use of highly-partisan movies to skirt campaign finance laws (Movies as a Campaign Finance Law End-Run). The basic idea is to make a partisan movie, such as Michael Moore's virulently anti-Bush film Farenheit 9/11, and then advertise the heck out of it prior to an election. The 30-sec trailers for the movie could be as effective as campaign commercials as anything the candidates and the campaigns "officially" run. As Froomkin notes, this will be a "loophole it will be next to impossible to close."
It is funny, you know. The advent of campaign finance laws have tracked closely with the advent of traditional broadcast mass media. The money is raised for massive television ad buys, not print ad buys or billboards or a whole bunch of other things. I don't think the Democrats lose sleep over the fact that the Republicans can out spend them with regard to Washington Times page buys. But what is the common solution to the television ad problem? All sorts of arcane, loophole-ridden, cynicism-increasing, lack of respect for law fomenting, First Amendment-threatening regulation of how money is to be raised and spent (basically for television advertisements).
I look at this and I'm baffled. If the problem is the need to raise lots of money to run an expensive television-ad based election campaign, maybe the problem isn't campaign finance but the durn fool way we've regulated our broadcast medium. Rather than see the problem as one of campaign finance, why don't we see the problem as one of television regulation? If the major networks weren't bottlenecks and gatekeepers for the most popular medium of all, I don't think we'd have 1/10 the problem with campaign ad buys (and the money raised) that we have now. Read on...
In a system of broadcatching, campaigns could release commercials and video playlists would incorporate the commercials based on desire, rather than exchange of money. If I saw a campaign commercial it would be because my trusted social network recommended it to me, not because somebody paid them to distribute it. Sure, politicians would pay to have their commercials associated with particular programming, but it would be a snap for someone else to add a playlist that included the countercommercial as well. In such a case it would be difficult to outspend the opposition. For every commercial they pay to place, the opposition can match with unpaid commercial placements. It would be a battle of the playlists, not a battle of buying network time.
If there were no longer channels or networks to speak of, if we watched the television smorgasboard we wanted from an essentially unlimited variety of sources, then each individual program would have more say over its editorial position with regard to commercials. No one can force the New York Times to run a political ad, let alone run a political ad at favorable rates, unlike television networks, which are required to run campaign advertising at favorable rates. The justification for such video regulation doesn't exist in a broadcatching world.
I imagine that we would have relatively politically neutral video playlists from groups like the League of Women Voters that would feature ads from both parties. Lots of organizations, some partisan, others not, would also promote their video playlists. The landscape would be much different and I don't think that massive television advertising budgets would give near the same advantage to well-financed politicians that they do now.
Reform television regulation, not campaign finance!
C|Net News runs yet another hyper-libertarian/quasi-anarchist rant from Declan McCullagh, this time about getting rid of the FCC (Why the FCC should die). Don't get me wrong, few people despise the FCC's current incarnation more than me. Even fewer government agencies suffer as much cognitive dissonance as the FCC; worshipping free markets where there is market failure and embracing censorious paternalism where people can make their own choices. However, McCullagh is also suffering a serious bout of cognitive dissonance when it comes to his solution.
For example, the article complains about the FCC enforcing the broadcast flag. Would private spectrum be any different? After all, software is mostly free of government regulation, but every major media software option provided incorporates DRM that is frequently worse than the broadcast flag. The FCC isn't requiring (yet) WMA and iTunes to incorporate DRM, but they do anyway. Private ownership doesn't protect against market structure created by other aspects of law.
Gee, think about how the DMCA will work with regard to private spectrum. Only authorized devices will be permitted to connect to the network. Hmmm ... sort of sounds like when the FCC banned homeowners from owning their own non-Bell phones, except the decisions this time will be made by a corporatist oligarchy.
Now, in his free market worship, McCullagh thinks that spectrum is more valuable if it is excludable - that is the "owner" can keep others from using the same spectrum. He doesn't even consider the possibility that spectrum could be free to use, as long as everyone obeys certain rules.
The FCC shouldn't be abolished, it should be re-chartered. We'd be better off if the point of the FCC was to attempt to enforce the end-to-end principle and make spectrum as dumb and free as possible.
This news item from Broadcasting & Cable is nearly a week old, but it shows that the FCC wants to extend its control over free speech beyond sex (FCC Will Look at Violence). Interestingly, the study will focus on "the impact of TV violence on children." Note, the study won't be about the impact of broadcast TV violence, but TV violence alone, which leaves a lot of leeway for taking a look at a bunch of things like cable and etc.
via Lost Remote
Today, the FCC issued a request for comments regarding a la carte cable programming pricing (Comment Requested on a la Carte and Themed Tier Programming and Pricing Options for Programming Distribution on Cable Television and Direct Broadcast Satellite Systems [PDF]). This is an issue that has gotten much press recently, mostly due to consumer group pressure as well as conservatives who don't like the idea that some of their money might be supporting indecent cable programming.
Most of the articles that address this issue, however, deal solely with the question of whether consumers should have to pay for something they have no interest in. In contrast, a passle of economists argue persuasively that, in fact, cable bundling can be a good thing in aggregate. See, among others, Marginal Revolution: Why can't you choose your cable channels?. The basic idea is that "when demands are scattered [hard to tell who likes sports and who like cartoons] and the marginal cost of additional service is low," bundling makes sense.
However, this doesn't address the bundling that concerns me - the bundling of programming from content producer (think Disney) to cable company. If a cable company wants Disney's ESPN, they're going to have to take some of Disney's less popular channels as well. Read on...
You might wonder why, if bundling makes sense for consumers, why it doesn't also make sense for cable companies. But the assumptions for both cases are different. In the case of consumers, an assumption is that the cable company can gauge the aggregate demand for a channel but not the specific demand. In other words, the cable company knows that 50% of its customers want ESPN, they just have a hard time identifying which 50%. Of course, the cable company could go through a process of interviewing and negotiating with each individual consumer to determine their specific demand, but the transaction costs are too high. On the other hand, since cable companies and content producers already engage in expensive negotiations for channels, the transaction costs would seem to be reasonable. A content producer should be able to negotiate and determine a cable company's specific demand for a particular channel.
As with any bundling scheme, one also has to ask to why the seller would want to bundle, since that generally decreases the price they can get from negotiating two separate prices. In this case, among other reasons, bundling content has the effect of increasing the barriers to entry for producers of cable channels. If Comcast has to take a food channel from Disney as part of the ESPN deal, it will be more difficult for me to get Comcast to buy and provide good channel space for my food channel. The increased barrier to entry more than offsets Disney's lost revenue from bundling.
Of course, one might argue that the content creators want to bundle through the cable companies to the consumer. But we have a middleman here for a reason, don't we? Shouldn't the cable company buy programming channels a la carte and then decide on what bundling to consumers makes sense? If we want to turn the cable companies into common carriers for content, fine. But, if not, then let them decide what bundling makes sense, since they are closer to the consumers.
Thus, I am happy that the FCC is actually addressing the content producer bundling issue. Some of the questions the request for comment proposes are:
Do MVPDs ["Multichannel Video Programming Distributors" - FCC-speak for cable and satellite companies] currently have the option to purchase channels from programmers on a stand-alone basis, such that they could, if they chose, offer programming to consumers on an a la carte or themed-tier basis? What are the limitations, if any, on their flexibility to do so? What statutory or regulatory action would be needed to remove any such limitations?
What would the impact be on retail rates to consumers if programmers were required to offer their programming to MVPDs exclusively on a stand-alone basis, and could not also offer programming on a bundled basis for free or at a discounted rate?
This next question is a very good one considering the "must carry" rule that allows broadcast networks to be especially extortionary.
How have broadcast networks and affiliate groups used the retransmission consent process to expand carriage of affiliated programming? How has this affected rates for MVPD offerings for consumers?
The next three questions make me think of the doctrine of "copyright misuse" for some reason.
What, if any, Constitutional or other legal questions are raised by programmers' ability to bundle services through retransmission consent, regional sports contracts, and national programming contracts for marquee programming?
What, if any, Constitutional or other legal questions would be raised if Congress required programmers to offer their channels to MVPDs on a stand-alone basis and prohibited them from requiring carriage of their programming on particular tiers?
What, if any, Constitutional or other legal questions would be raised if, in addition to currently offered packages, Congress required programmers to allow MVPDs to voluntarily offer their channels on an a la carte or themed-tier basis?
If any economists would like to work with me on some comments to the FCC, let me know. Comments are due July 8th.
Public Knowledge's President, Gigi Sohn, has an op-ed in C|Net News today on the FCC's digital media/broadcast flag powergrab (FCC is taking wrong turn on digital media). She points out a couple of the dumb things the FCC plans to do with their claimed power to regulate digital media. However, if the FCC gets away with the broadcast flag, imagine all the dumb ideas content providers will try to foist upon us.
Read on...
For example, Engadget notes that a company called MyDTV has gotten $7 million in financing to provide pop-up ads on television programming (Pop-ups coming to digital TV?). From the company's website:
A Mel Gibson fan is watching a news program. An on-screen message recommends the viewer watch "Mad Max Beyond Thunderdome," which will air on a PPV channel in one minute. The viewer may then choose to click on the alert to tune to the movie. The viewer is happy because he saw a recommendation to see his favorite actor and is willing to pay the $3.95 to watch the movie as a result.
or
Let's say a Jennifer Aniston fan is watching a news program. An on-screen promotion alerts that viewer that Jennifer will be interviewed on your channel in one minute. The viewer may click on the promotion to tune to the interview. The viewer is happy because he saw his favorite TV star, and your ratings improve as a result.
Just what we need. Pop-ups for television. Now, this isn't necessarily a bad idea, but to have it imposed by the gatekeeper distributer is a bad idea. I would be interested in such a service, if it were based on open standards and I could subscribe only to those notification services that I trusted, just as I subscribe to the RSS feeds I am interested in. Will the FCC allow such a system to be built on top of the broadcast flag? Unlikely, especially when the broadcasters undoubtedly complain and threaten to withold valuable content.
PVRblog reports on cable operators struggling to promote Video-on-Demand (VoD) in the face satellite TV's major PVR push (PVRs: satellite vs. cable). According to Television Week, "only 38 percent of cable subscribers are aware that they can get DVR service from their cable operators, compared with 78 percent of satellite customers" (Cablers Start a Fire Under VOD Plans). So what is the response from cable operators? Are they promoting their PVR services more? No, that would empower consumers too much. Instead cable operators are (in PVRblog's helpful summary):
I had to read the last sentence of the TV Week article twice. "'If we do our job [by providing VoD niche magazines] ..., people will think twice about leaving for satellite,' he [a regional VP with Mediacom] said." I originally thought the quote said "If we do our job ... people won't think twice about leaving for satellite."
Video on Demand is, apparently, the sort of innovation the FCC supports, as they are doing their best to cripple DVRs.
Well, technically, the treaty is called the WIPO Treaty for the Protection of Broadcasting Organizations, cuz heaven knows they're all faced with extinction. The draft treaty will be discussed June 7-9 by WIPO's Standing Committee on Copyright and Related Rights (SCCR), which will then "decide whether to recommend to the WIPO General Assembly in 2004 that a Diplomatic Conference be convened." A diplomatic conference can adopt a treaty. The treaty will not go into effect, however, until a certain number of countries have acceded to it. The draft of the treaty is available here: Consolidated Text for a Treaty on the Protection of Broadcasting Organizations [PDF].
This treaty is really a nasty bit of work. It will give broadcasters, not copyright holders but broadcasters, a number of exclusive rights in their broadcasts, such as fixation, reproduction and distribution, whether or not the broadcast is of a public domain work. Moreover, the treaty would require signatories to prevent circumvention of those rights.
Oh yeah, the treaty would also apply to "cablecasters" and the United States (all alone on this one, apparently) wants the treaty extended to cover "webcasters." What exactly constitutes a webcaster isn't entirely clear, perhaps only streaming, perhaps HTTP. While the US is not a signatory to the previous treaty on broadcast, our efforts on negotiating this one indicate we are likely to sign on.
Read on for a look at this monstrosity...
Background
EFF's Consensus at Lawyerpoint, an anti-broadcast flag blog, reported on the origins of this treaty back in August 2002 (Europeans push WIPO Broadcast Treaty to create "fixation rights"). Last October James Love, director of the Consumer Project on Technology, wrote (with comments and suggestions from EFF's Cory Doctorow) an excellent analysis of an earlier draft of the treaty ([DMCA-Activists] On the Proposed WIPO XCasting Treaty). CPTech maintains a website tracking the treaty (The proposed WIPO Treaty for the Protection of the Rights of Broadcasting, Cablecasting and Webcasting Organizations).
Sui Generis Copyright-like Protection for Broadcasts
The treaty would give (among others) the following rights to broadcasters, cablecasters and, if the US has its way, webcasters: fixation, reproduction and distribution. Of course, there is no limit on what is covered by the treaty, as long as it is "broadcast" and consists of "sounds or of images or of images and sounds" (although why they couldn't just say "images and/or sounds" is beyond me). In other words, broadcast of public domain works like Dawn of the Dead would be covered along with works for which the broadcaster owns the copyright. Heck, you could start a radio station that exclusively broadcast Creative Commons-licensed freely distributable works and keep anyone from recording your broadcast.
Why bother with copyright? Simply "broadcast," or in the US's version, "webcast" all your material. Instead of connecting to an FTP server to get video or music you would connect to an ongoing "webcast" of the media, so that way, the broadcaster can keep control of the media even if it isn't copyrightable.
Article 8
Right of Fixation
Broadcasting organizations shall enjoy the exclusive right of authorizing the fixation of their broadcasts.
No more VCR, DVD-R or TiVo for you. So much for time shifting. Goodbye Sony v. Universal, it was nice knowing you.
This is the mandated broadcast flag. If the broadcaster doesn't want you recording it, you don't have a right to.
Article 9
Right of Reproduction
Alternative N
Broadcasting organizations shall enjoy the exclusive right of authorizing the direct or indirect reproduction, in any manner or form, of fixations of their broadcasts.
Alternative O
(1) Broadcasting organizations shall have the right to prohibit the reproduction of fixations of their broadcasts.
(2) Broadcasting organizations shall enjoy the exclusive right of authorizing the reproduction of their broadcasts from fixations made pursuant to Article 14 when such reproduction would not be permitted by that Article or otherwise made without their authorization.
More broadcast flag goodness. Even if you are allowed to record it, the broadcaster can control how you can reproduce it. That way, if you want to shift the latest Sopranos from the TiVo in the living room to your laptop to watch on the plane, the broadcaster can stop you.
The US and, for some reason, Egypt support alternative "O", which protects broadcasters from reproductions of unauthorized fixations.
Article 10
Right of Distribution
Alternative P
(1) Broadcasting organizations shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of fixations of their broadcasts, through sale or other transfer of ownership.
(2) Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph (1) applies after the first sale or other transfer of ownership of the original or a copy of the fixation of the broadcast with the authorization of the broadcasting organization.
Alternative Q
Broadcasting organizations shall have the right to prohibit the distribution to the public and importation of reproductions of unauthorized fixations of their broadcasts.
In other words, no filesharing of broadcasts. Don't you dare make the fixation you made of ABC's broadcast of the President's State of the Union address (SotU) available on KaZaA.
Article 11
Right of Transmission following Fixation
Broadcasting organizations shall have the exclusive right of authorizing the transmission of their broadcasts following fixation of such broadcasts.
Don't webcast what you've saved previously. Not only can't you put your fixation of the SotU on KaZaA, you won't be able to webcast it either.
Now, governments can make the same exceptions to these broadcasting rights as they "provide for, in their national legislation, in connection with the protection of copyright in literary and artistic works." But they don't have to. Nor is it clear to me, under recent copyright decisions, that the Constitution requires the US to do so.
Term of Protection and Formalities
Article 15
Term of Protection
The term of protection to be granted to broadcasting organizations under this Treaty shall last, at least, until the end of a period of 50 years computed from the end of the year in which thebroadcasting took place.
Great. Copyright isn't long enough we have to provide protection for the broadcasts for fifty years in addition? So, forty years from now, when your grandchildren want to use a clip from television today to illustrate a report on the popular culture of their grandparent's era, they'll have to clear permissions with the television station that broadcast the clip (assuming we still have television stations then).
The previous treaty had a length of twenty years and, as we all know, broadcasters in countries that signed the treaty have suffered greatly from this length.
Article 18
Formalities
The enjoyment and exercise of the rights provided for in this Treaty shall not be subject to any formality.
No pesky registration requirements or anything. That way it is very difficult for people to know who owns the rights to what decades from now.
DMCA for Broadcast Flag
Article 16
Obligations concerning Technological Measures
(1) Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by broadcasting organizations in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their broadcasts, that are not authorized or are prohibited by the broadcasting organizations concerned or permitted by law.
Alternative V
(2) In particular, effective legal remedies shall be provided against those who:
(i) decrypt an encrypted program-carrying signal;
of the broadcasting organization that emitted it;(ii) receive and distribute or communicate to the public an encrypted program-carrying signal that has been decrypted without the express authorization
(iii) participate in the manufacture, importation, sale or any other act that makes available a device or system capable of decrypting or helping to decrypt an encrypted program-carrying signal.
Alternative W
(2) [No such provision]
This is the equivalent of the passage in the WIPO Performances and Phonograms Treaty (WPPT) that the US used as one of the justifications for the passage of the DMCA. So, not only does this treaty require a broadcast flag, it will be illegal to circumvent it.
Article 17
Obligations concerning Rights Management Information
(1) Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty:
(i) to remove or alter any electronic rights management information without authority;
(ii) to distribute or import for distribution fixations of broadcasts, to retransmit or communicate to the public broadcasts, or to transmit or make available to the public fixed broadcasts, without authority, knowing that electronic rights management information has been without authority removed from or altered in the broadcast or the signal prior to broadcast.
(2) As used in this Article, “rights management information” means information which identifies the broadcasting organization, the broadcast, the owner of any right in the broadcast, or information about the terms and conditions of use of the broadcast, and any numbers or codes that represent such information, when any of these items of information is attached to or associated with 1) the broadcast or the signal prior to broadcast, 2) the retransmission, 3) transmission following fixation of the broadcast, 4) the making available of a fixed broadcast, or 5) a copy of a fixed broadcast being distributed to the public.
And don't try to make your copy of the broadcast of the State of the Union look like a legal, unbroadcast version.
Article 21
Provisions on Enforcement of Rights
(1) Contracting Parties undertake to adopt, in accordance with their legal systems, the measures necessary to ensure the application of this Treaty.
(2) Contracting Parties shall ensure that enforcement procedures are available under their law so as to permit effective action against any act of infringement of rights or violation of any prohibition covered by this Treaty, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements.
Many people argued that the WPPT didn't require the US to pass the DMCA, as Congress concluded, because the US already adequately protected the rights of copyright owners. As the US doesn't protect any "broadcast" rights (other than some "theft of service" stuff), this provision would pretty much require a US Broadcast Flag DMCA law to be passed.
Conclusion
This is bad, bad, bad. What more can I really say?
Jeff Jarvis is doing an excellent job following the FCC's attack on free speech for broadcast. His latest "Daily Stern" report points out the inconsistencies between FCC Chairman Michael Powell's previous statements on broadcast speech regulation and his current stance (The Daily Stern: Sayings of Chairman Powell).
More interestingly, however, Jeff is ripping apart the old, voluntary US Code of Practices for Television Broadcasters (The Daily Stern: The Code). The "Code" was the set of ethical guidelines established in the early days of television for United States television broadcasters, but was abolished in the 1980s. The reason Jeff brings it up again is because the FCC is now pushing broadcasters (and if Commissioner Michael Copps has his way, cable and satellite channels) to adopt a brand new set of "voluntary" guidelines. Many aspects of the old code seem laughable now, but which will broadcasters readopt if pushed hard enough by political pressure? Fifty years from now, which aspects of a new code will look laughably quaint? Some examples of the old code with Jeff's comments:
Attacks on religion and religous faiths are not allowed. Reverence is to mark any mention of the name of God, His attributes and powers.... [Clergy] portrayed in their callings are vested with the dignity of their office and under no circumstances are to be held up to ridicule.
So The Code is explicitly trying to proselytize the nation. And it won't allow us to make fun of, oh, Jerry Falwell, Jimmy Swaggart, Jim Bakker, or hundreds of kiddie-diddling priests.
Exhibitions of fortune-telling, astrology, phrenology, palm-reading, and numerology are acceptable only when required by a plot...
So much for Crossing Over with John Edward.
Law enforcement shall be upheld, and the officers of the law are to be portrayed with respect and dignity.
Unless they rob, steal, or beat up people for no reason. OK, destroy the Rodney King tape.
It is the responsibility of a television broadcaster to make available to the community as part of a well-balanced program schedule adequate opportunity for religious presentations....A charge for television time to churches and religous bodies is not recommended.
'Nuff said.
See Jeff's post for many more gems, but here are a few more that Jeff didn't have time to go through:
Sex crimes and abnormalities are generally unacceptable as program material.
Goodbye, Law & Order: SVU. Adios, Guinness Book of World Records television series.
The use of gambling devices or scenes necessary to the development of plot or as appropriate background is acceptable only when presented with discretion and in moderation, and in a manner which would not excite interest in, or foster, betting nor be instructional in nature
Well, the World Series of Poker is right out. I'm not so sure about Las Vegas, either.
I wonder if the new guidelines will take as much care with commercials as the old ones do:
Advertising messages should be presented with courtesy and good taste; disturbing or annoying material should be avoided...
Heh.
The advertising of beer and wines is acceptable only when presented in the best of good taste and discretion, and is acceptable subject to federal and local laws.
How many beer commercials are in good taste? How many of the funniest, best remembered beer commercials are in good taste?
The advertising of fortune-telling, occultism, spiritualism, astrology, phrenology, palm-reading, numerology, mind-reading or character-reading is not acceptable.
Miss Cleo, this means you.
The advertising of tip sheets, race track publications, or organizations seeking to advertise for the purpose of giving odds or promoting betting or lotteries is unacceptable.
*cough*CaliforniaLottery*cough*
Last week, I wrote an annotated version of two recent speeches, one by FCC Chairman Michael Powell and the other by Commissioner Michael Copps, in which they addressed (behind closed doors) the National Association of Broadcasters regarding indecency regulation (FCC Commissioners - No Free Speech Please, We're Americans). Frequent commentator Cypherpunk thinks that I was overly harsh with regard to Michael Powell, who formerly was a strong defender of freedom of speech in broadcasting (Too Rough on Powell).
Rather than simply rebut Cypherpunk, I've adapted Powell's speech to give my version of what he should have said at the NAB meeting.
The original speech is here:
Remarks of FCC Chairman Michael Powell at the NAB Summit on Responsible Programming, The Renaissance Hotel, Washington D.C., March 31, 2004 [PDF].
Read on for my revised version.
Good Afternoon. Thank you Eddie for that kind introduction. I applaud you and your members for holding this summit and candidly exploring these issues that have lit up Washington - - - and indeed America - - - as of late.
These are challenging times for the broadcast industry.
For one, we are coming off an explosive debate about media ownership. The heated rhetoric often far exceeded the facts, but in any event, it created a very hostile climate for the media industry that will likely have lasting consequences. Of particular significance, and concern, is that the debate re-energized the previously fading debate about the role of government in content—whether it be restricting offensive content, or promoting favored content and viewpoints. I am greatly concerned that many have expressed increased comfort with governmental content intrusion in the furious debate about broadcast indecency and excessive violence.
While the broadcast medium does not today enjoy the full breadth of the First Amendment privilege, we should never be comfortable with content intrusion by the government.
In addition, the competitive pressures from other media sources continue to dramatically fragment audiences while the growing convergence of technology is evaporating any meaningful distinctions among distribution mediums. Competition continues to grow stronger from cable and satellite, but we are also seeing the use of advanced technology to create many other platforms that folks turn to for entertainment, information and news --- and the distinctions between these mediums and broadcast will grow increasingly blurred. Perhaps more importantly, competition is coming not only from traditional and not-so-traditional media sources, but also from what have naively been called “consumers,” who are increasingly becoming creators and participants in “citizens’ media.”
The rise of satellite radio, the Internet, video gaming, TiVo, and, of course, citizens’ media, all have combined to present sharp threats to traditional broadcasting, but also new opportunities for broadcast innovation, promoting free expression, and citizen empowerment.
But this competitive pressure also has unfortunate consequences as well. Indeed, I am of the view that it is this competitive pressure, much more than consolidation, which accounts for much of the programming that tests the limits of indecency and violence. As audience continues to fragment and the number of choices multiplies, it is harder and harder to grab and hold a viewer or listener, so the less innovative and creative resort to programming meant to gain attention through shock and titillation.
But it would be a mistake to think that all programming that tested the limits of indecency was merely meant to shock and titillate. Our history is replete with works, once thought beyond the bounds of decency, which have ultimately been recognized as important works of merit.
It is for this reason that the indecency laws, which are not new, periodically create a furor as each generation revisits their enforcement. For 77 years, Congress has had a statute that prohibits any obscene, indecent, or profane utterance over the airwaves. Yet, seventy-seven years later, what is seen as commonplace today would certainly have shocked the conscience of the Congress that originally passed the statute.
The FCC has always enforced these laws with varying success, in great part due to the ever-changing standards upon which we must base our judgments. In some periods, the FCC has been fairly light in its enforcement and in other years comparably heavy. I have seen both. I have argued passionately that we should have no such laws out of respect for the First Amendment, and others have argued with equal gumption that we should draw even more stringent limits. Such forces have always buffeted the FCC’s enforcement efforts --- or content intrusion generally for that matter --- and they always will.
These are always very difficult decisions. It is very hard to balance and reconcile our shifting moral and cultural values on one hand, and the enormous value we place on speech free from government intrusion on the other. At the margins this is quite difficult and the FCC has, in view of the emphatically narrow scope of our censorious power, generally been cautious.
However, as in every periodic furor, we are talking about speech or conduct that many Americans believe has clearly crossed that margin and has set off the current powder keg in the country. We see increasing - - - I might even say escalating - - - complaints from many Americans because increasingly it seems to these citizens that the media is not playing close to the line, but is outright leaping past the line and in fact daring the audience and daring the government to do anything about it.
Some of the transcripts I have been forced to read reveal content that is pure trash, plain and simple. But I always remind myself that the history of free expression in this country is one of vindication involving speech that many citizens have found shabby, offensive, and pure trash, plain and simple.
I think it is important, moreover, to understand what many Americans are actually upset about. The Super Bowl incident and the debate it unleashed is not really about a bare breast. It is not whether our society can accept public displays of the human body. It can. What really upset some people was the shock and amazement that such material would appear on that program at that time.
In other words, the debate is not best understood as one about what you can do or cannot do on radio or television. Rather, it is more about whether consumers can rely on reasonable expectations about the range of what they will see on a given program at a given time.
It is not Janet’s nudity that is decried. It is the fact that “it was the Super Bowl!” the largest prime television event of the year. It was promoted as an event for friends and family, but clearly much of the material was inappropriate for many Americans. Moreover, it was not simply Janet’s performance that was classless, crass and deplorable. Many of the commercial advertisements were just as crude, if not more so.
I cannot say that people would necessarily have been any less shocked with the supposedly family friendly Super Bowl had it been available only on cable rather than broadcast. But I do know that people do not like the sense that they have no safe expectation of what they might see or hear during a given program, whether broadcast, cable or DVD.
Like other media, people rely on a program’s or a network’s reputation to determine whether future programs will be appropriate for themselves or their family. This past Super Bowl CBS and the NFL broke faith with many in their audience in terms of expectations. Consequently, many responsible viewers will no longer view or permit their children to view CBS’ sportscasts of NFL games. Like any publishers who have betrayed their audience’s expectations, it will be CBS’ and the NFL’s tasks to earn back their viewer’s trust.
A station broadcasts a variety of fare during the day, and is limited by day parts. Over time, consumers came to expect and arrange their viewing choices around programming at certain times --- the morning shows, afternoon soaps and talk shows, primetime, and late night have had special meaning in broadcasting, unlike in other media. But these expectations are changing. Citizens, no longer simply consumers, are using devices such as TiVo to arrange their viewing choices to suit their convenience. They may watch their soaps in the evening and late night programming in the morning before work.
In the past, given the free over the air nature of the medium and limited viewing choices --- not least limited by the FCC itself --- consumers did not have the opportunity to express much in the way of prior consent to receive certain sounds and images. But today, with a wide range of viewing options, from cable to satellite, from DVD to DivX, consumers are expressing more and greater prior consent than ever before. As I’ve said before, most Americans are willing to bring TVs into their living rooms with no illusion as to what they will get when they turn them on.
The First Amendment is cherished, but it bends only for you among media services. The Supreme Court and countless legal decisions create a special exception that allows government to demand more from broadcasting.
However, due to many of the changes I have already spoken of, the justifications for that exception are under increasing attack. Eventually, the time will come when we will have a single standard of First Amendment analysis that recognizes the reality of the media marketplace and respects the intelligence of American citizens. We must prepare for that eventuality by giving citizens greater ability to take on the responsibilities this will entail.
Consequently, I am announcing a new program that will put increased power to make informed choices into the hands of citizens and parents. I am going to strongly encourage broadcasters to freely provide much more electronic metadata about their programming in order for citizens to be able to make better-informed choices.
I am not talking about the V-Chip and a ratings system, which are limited in their usefulness. I am speaking merely of robust information from broadcasters that will clearly identify their programming and its origins.
With such rich information in electronic format, third parties will be able to easily create the tools for parents and citizens to receive only those sounds and images they feel appropriate. Parents will be able to download annotated and sanctioned programming guides from groups they trust and, for example, program their TiVo accordingly. Even for those without TiVo, third-party systems could easily control access to television with much finer distinctions than the V-Chip, channel blockers, or FCC rulings are capable of making. For example, parents would be able to allow their children to watch sporting events, such as football, without having to worry about their children being exposed to alcohol ads.
It must be recalled that the FCC’s ability to regulate only extends as far as the patently or grossly offensive to community standards for the broadcast medium. We cannot levy fines against that which is only mildly offensive, or offensive only to one community’s standards. Furthermore, the FCC can only act long after the fact, as the process for determining fines is an extended one, not least because we must carefully balance important values.
But the availability of robust electronic metadata and programming guides will give citizens the ability to give their informed consent prior to receiving broadcast images and sounds. The viewers, as in any other medium, will discipline broadcasters who violate this trust. Both broadcaster and citizen will benefit. Citizens will benefit from being able to exclude that which offends them, while broadcasters will know that those viewing programs do so willingly.
This industry has always had a proud tradition of serving the public interest and has always relished that honor --- wearing it right out on your sleeve. This is a public-spirited medium that prides itself on delivering the news, weather, traffic, and critical information in an emergency, such as the Amber Alert and the countless contributions you make to your local community. Robust electronic metadata is just one more step in providing timely information in your communities’ interest.
In this vein, I want to strongly encourage you to develop and adopt a voluntary and robust metadata standard that will empower your viewers, the American people, to make informed decisions as to the content they view. I believe you can create such a standard and that you and your audience would benefit from you doing so.
The FCC will continue to enforce prohibitions on broadcasting obscene, indecent and profane material, not least because the law says so. But such enforcement alone will not be enough to meet the increased expectations of citizens to protect themselves and their family from inappropriate material. That is why I have proposed a program to give them even greater power to deny or permit broadcast programs into their homes.
As I once concluded a speech on the First Amendment several years ago: “We should think twice before allowing the government the discretion to filter information to us as they see fit, for the King always takes his ransom.” Let us, instead, give citizens the power to filter information as they see fit.
Thank you.
A few days ago C|Net News reported that TiVo is planning on rolling out a quasi-new advertising model this fall (TiVo looks to tune in to advertisers). The new system is described thus:
Known as Video-to-Video, the idea is to let viewers click a button on their remote control to immediately watch a 3-minute video describing products and services that might appeal to them. The marketing clips are promoted through small icons that appear on the TV screen as viewers fast-forward past regular ads.
This is a perfect example of TiVo forgetting what made it successful in the first place. Remember those cool, early commercials for TiVo in which a couple of guys charged into a television network's offices and tossed a programming exec out the window? While the commercials might not have been terribly effective (many people still don't "get" TiVo), they did get to the heart of what makes TiVo successful: empowering viewers. With TiVo you no longer had to watch programs when and how the network execs (or advertisers) chose.
The problem with this new advertising system is that it is an attempt to get a limited amount of control back into the hands of the networks and advertisers. Consumers can have neat, new functionality, so long as that functionality suits the corporate interests. Sure, it would be nice to see commercials on TiVo for things tailored to my interests, but that doesn't give me enough control. I want links to content that isn't from the major advertisers. I do like checking out the extended previews for movies I'm interested in and the special preview of the new Ford GT had me drooling, but I also want to see links to some of the absurd stuff coming out of Japan.
Just as it is great to get The Simpsons on Sunday at 8pm, it is much better to watch The Simpsons whenever it is convenient. It may be great to get additional content for some of the commercials the networks want me to see, but it is better to get additional content that I've chosen to be receptive to. Why should I only get the commercials that major broadcasters or TiVo want me to watch?
These restrictions become more obvious as you see the reaction of TiVo's partners:
"TiVo's making money off ads that run over our air space--What's in it for ABC?," said Rick Mandler, ABC's general manager for enhanced television. "We're not going to pass those triggers through without a business relationship in place," he said.
This is precisely why we need to empower viewers. If viewers were truly empowered by this system, TiVo could simply ignore ABC. Once the programming is on TiVo's hard drive, it is no longer ABC's air space and ABC shouldn't have any say over the matter.
What we need is an open standards based system, like something built on RSS. To heck with ABC, people don't want ABC to be making the decisions about the sorts of enhanced content we can get. If ABC won't get out of the way, I'm sure other networks would be willing to take advantage by giving viewers what they want. And if no networks take advantage, then some internet startup will.
If TiVo dies, it will be at least partly due to the fact that they were willing to empower viewers only so much and no more. Having increased viewer expectations substantially, TiVo now wants to throttle such empowerment. Of course, they are doing it in a highly unimaginative way.
The long-term vision for TV advertising invokes a concept known as "telescoping," in which the lines between advertising and programming may blur beyond recognition.
For example, if a viewer is watching "The Apprentice" and likes the new BMW a young executive is driving, he could click on the car with the remote to get an informational video on the car and schedule a test drive with a dealer. He could then go back to watching the show at the exact point where he left off.
Yawn. Ahem. Allow me to clarify. YAWN.
I've been hearing this vision of television "interactivity" from brain dead marketing drones for-seemingly-ever. Yeah, sometimes extended commercials are cool, but if your imagination ends there, pathetic. It is sort of like imagining email and the only use you can think of is opt-in spam. I've got some interesting ideas, such as annotated shows (I'd watch B:tVS with a Buffy fan feed), but my imagination is also limited. Open the standards, let people come up with clever uses. I doubt IM was imagined when the IP protocol was developed. Chances are, many of the bottom up ideas for enhanced television could be commercialized eventually, and not one would have been imagined by a marketroid.
Let 1,000 broadcatching flowers bloom. Broadcatching Now!
There has been a number of other commentaries on this article:
The Slashdot community discussed TiVo's plans and there were actually a number of insightful comments (Tivo Plans Commercials On Demand).
Techdirt provides brief history and analysis (TiVo Still Trying Creative Approaches For Advertising).
PVRblog is, I think overly, concerned about the future if advertising and content blur too much (Tivo advertising)
If we end up with a future such as is described, maybe we will wistfully long for the 20th century, and relatively well-defined lines between advertising and content.
Tadspot's headline is obviously skeptical (Yup, Tivo Is Doomed).
Last Friday I wrote about the FCC's decision last Thursday to begin enforcing their power to regulate "profane" language, something they have not done before (FCC Revives Notion of the Profane). See also this followup by Constitutional law guru Jack Balkin: Hate Speech Codes For Broadcasting?. Jeff "BuzzMachine" Jarvis has been, well, a machine when it comes to posting on this issue. Start with today's "Daily Stern" and just follow the links to previous posts for all the news fit to blog.
Despite all this discussion, however, I am still in the dark as to what "profane" means as the FCC interprets it.
Warning: Highly offensive language used as examples below.
The FCC has updated its policy page for "Obscene, Profane & Indecent Broadcasts," which declares briefly that:
Profane Broadcasts Restricted to 10 P.M. - 6 A.M.
The FCC has defined profanity as “including language that denot[es] certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.” See Complaints Against Various Broadcast Licensees Regarding Their Airing of the Golden Globe Awards Program, FCC 04-43 (released: March 18 2004) (“ Golden Globe Awards”). In announcing the latter part of this definition, the FCC ruled that the single use of the “F-word” in the context of a live awards program was profane. The FCC further stated that it, “depending on the context, will also consider under the definition of profanity the “F-Word” and those words (or variants thereof) that are as highly offensive as the “F-Word,” to the extent such language is broadcast between 6 a.m. to 10 p.m. We will analyze other potentially profane words or phrases on a case-by-case basis.” [emphasis, hyperlink in original]
Hmmm ... that definition clears things up ... not. So, confused, I called the FCC's Enforcement Bureau's Investigations & Hearings Division (the number is usefully posted on their page). Unfortunately, they could provide me no more guidance than what was on their webpage and what was in the recent decision. I asked if they had any plans to provide guidance, as they do with regard to indecency (In the Matter of Industry Guidance On the Commission's Case Law Interpreting 18 U.S.C. § 1464 and Enforcement Policies Regarding Broadcast Indecency), though I expect the indecency guidelines will need some major revision. The answer I received was, "that is up to the Commission."
Since the FCC seems too busy to let people know what their definition means, or at least provide some examples and guidance, I suggest that, as a public service, Howard Stern test the limits of the new definition of "profane." Howard can do this either by broadcasting content that is arguably "profane" or by gathering examples from other broadcasters of the arguably "profane" cough*Oprah*cough. Below, I list several particular areas of the FCC's definition that can be challenged.
But first, in order to test the limits of the "profane," any examples should be free of indecency. Thus, any test-worthy "profane" content should not depict or describe "sexual or excretory organs or activities." The Seven Dirty Words and closely related terms are right out. Phrases like "shit-eating nigger" don't count because "shit-eating" obviously refers to excretory activities. Phrases like "dumb, stupid nigger," however, might make appropriate test cases.
Blasphemy
Traditionally, the "profane" has been closely related to blasphemy, which the FCC acknowledges. The FCC now claims that the "profane" encompasses more than blasphemy, however, the FCC does not say that the "profane" does not still include the blasphemous:
We recognize that the Commission’s limited case law on profane speech has focused on what is profane in the context of blasphemy, but nothing in those cases suggests either that the statutory definition of profane is limited to blasphemy, or that the Commission could not also apply the definition articulated by the Seventh Circuit. Broadcasters are on notice that the Commission in the future will not limit its definition of profane speech to only those words and phrases that contain an element of blasphemy or divine imprecation... [footnotes omitted]
The FCC could have declared that not only is "profane" not limited to blasphemy but that it does not include it. What possible reason for not restricting the definition could they have had except that they are angling to come down hard on those who "sin against the virtue of religion"? While the Supreme Court has said one may not censor films for being "sacrilegious" (Burstyn v. Wilson, 343 U.S. 495 (1952)), apparently the Commission believes it still retains some authority over blasphemy. Someone should test that theory.
John Lennon once claimed the Beatles were "bigger than Jesus," which resulted in a rather large backlash (lots of people were quite offended) but a phrase so mild would be unlikely to work. Precedents hold that phrases like "god damn it" are not profane. However, if we go a little further back, say 70 years, we find a case in which profane speech was upheld (Duncan v. United States, 48 F.2d 128 (9th Cir. 1931)):
I'll put on the mantle of the Lord and call down the curse of God on you, that's what I'll do. You infamous harlot, you arch criminal, the people should tar and feather you and yours,
Perhaps Howard Stern could start his tests with that little speech addressed towards Michael Powell, for example. Using the words "by God" multiple times and in conjunction with irreverent speech has also been found to be profane, by God.
Perhaps there could be a contest on Howard Stern's show in which listeners are invited to profane the name of God (without being indecent). The real question is what would it take to get a blasphemy ruling from the FCC?
Hate Speech
Likely, hate speech is a much richer vein to mine when it comes to testing the FCC's new "profane" language ruling. Speaking of mines, the following was once found to be profane: "I can whip any damn Groover of the name." Seriously, when we think of "grossly offensive" language that is not "indecent," hate speech has to be at the top of the list. It would be easy enough to let loose with a racist diatribe (just be sure to avoid sexual or excretory words) and grossly offend people.
"Grossly offensive" does not necessarily require an out-and-out racist diatribe, however. The New York Daily News reports that WWPR fired a DJ for racially insensitive remarks (DJ fired for race remark). According to the article, the DJ spoke out against interracial relationships. Subsequently, "The station received many E-mails, phone calls and messages from listeners who were displeased and felt alienated as a result of her actions." As the DJ said, "I am being censored not for sexual indecency, but racial indecency." Sounds about right to me; the FCC ought to do something about it.
In any case, we should find out what some of the boundaries are. How far does "grossly offensive" extend?
Who Must be Offended?
According to the FCC, in order to be indecent, a broadcast must be "patently offensive as measured by contemporary community standards for the broadcast medium." For this, the FCC provides a little more clarification, "The determination as to whether certain programming is patently offensive is not a local one and does not encompass any particular geographic area. Rather, the standard is that of an average broadcast viewer or listener and not the sensibilities of any individual complainant."
The "contemporary community standards" test is fairly standard for naughty bits, but the FCC did not adopt that test for profane language. Instead, the FCC declared that profane language must be "grossly offensive to members of the public who actually hear it as to amount to a nuisance." Hmmm ... "members of the public." Could it be that two offended members of the public would be enough to trigger a fine? If a broadcast is a nuisance to two members of the public is that enough?
The FCC does, sort of, provide a definition for "nuisance":
Nuisance has been defined as including “a condition of things which is prejudicial to the . . . sense of decency or morals of the citizens at large . . . .” Ballentine’s Law Dictionary (3d ed. 1969).
Nice use of the passive tense. Sure, nuisance has been defined that way. Nuisance has been defined lots of ways, but the FCC doesn't say which definition of "nuisance" they are adopting. And why does the FCC have to reach back to a legal definition more than 40 years old? Is the government so poor they can't afford more recent legal dictionaries?
In Pacifica, the "nuisance rationale" isn't about nuisances per se, but rather nuisance "law generally speaks to channeling behavior more than actually prohibiting it." Well, grossly offended members of the public are likely to want to channel offensive language, rather than prohibit it. Alternatively, "nuisance may be merely a right thing in the wrong place, - like a pig in the parlor instead of the barnyard." Whatever that means.
Indeed, whatever "nuisance" means. Obviously, "nuisance" is not the same thing as violating "contemporary community standards," otherwise the FCC would have used that language. Unfortunately, the FCC hasn't seen fit to provide guidance on what the distinctions might be. Is there anyone at the FCC who bothers to read the decisions they issue?
Probably the best way to test this aspect of the decision is for those people issuing complaints to declare that, while they don't believe the offending statements violate contemporary community standards they are definitely a nuisance.
Conclusion
The FCC's new "profane" language doctrine is a mess just waiting to be challenged. The opportunity to embarrass the FCC is there. Which broadcast personality will accept the challenge?
On Saturday, Andrew Grumet announced the release of RssReader 0.4d (RssReader 0.4d). In Andrew's words, "RssReader is TiVo-resident software that displays the contents of an RSS feed on your television." Of course, who the heck really wants to read RSS feeds on television? Sounds like one of those dotcom-era WebTV-like monstrosities. Instead, Andrew notes that "More interestingly, RssReader can schedule recordings from syndication feeds containing RSSTV extensions. This means you can subscribe your TiVo to a community-evolved ToDo list, such as the feed generated by Program My TiVo!" Absolutely, and something I think has amazing potential (RSS for TV, Music).
However, I also think that there is not only a desire for at least some RssReader functionality on television, but important reasons to make it happen. Indeed, perhaps a grant from Homeland Security to Grumet would be in order.
Imagine an RSS feed that would scroll at the bottom of your television display while you watched any other channel, a news ticker if you will. It would be just like the scrolling feeds on the news and financial networks, but would be overlayed on top of whatever you are currently watching. Most importantly, the content would come from an RSS feed.
Emergency Broadcatching System
When I lived on the East Coast, the television was a major source for breaking emergency local news such as school closings, traffic conditions and weather alerts. Turn on the local morning news after a snow storm and there would be a scroll of the business and school closings and delays. Major accidents on I-95 would initiate traffic tickers and you would also see listings of various counties under blizzard alert or where snow emergencies had been declared.
There are a couple of problems with this system. First, you have to be watching a live, local station. What about those gentle souls who like to start their morning with a relaxing gardening show on Home and Garden TV while they sip a nice cup of herbal tea? Thanks to TiVo, what about those early-risers who want to watch David Letterman's top ten from the night before in the morning just before heading to the home office?
Second, these scrolls are not necessarily the most efficient way of getting information to the audience. The alphabetical listings of businesses and schools seem to get longer and longer every year. Currently, you have to wait like 10 minutes for the darn thing to scroll through the entire listing in New Haven (and Yale never closes anyway). And you know something? I couldn't have cared less about the storm