Archive | August, 2005

Next Battle of the Indecency War is Cable and Satellite… and Unconstitutional

Salon has an article on the forces girding for the next stage of the regulatory battle over indecency. One of the next fronts may be cable and satellite, which FCC Chair Kevin Martin would like to see subjected to indecency regs just like broadcast TV and radio. According to Salon the staff of Senate Commerce Committee Chair Ted Stevens has been, “reviewing new regulatory options, looking for ideas that would survive a court challenge on First Amendment grounds.”

Call me an optimist, but I don’t think extending indecency regs to cable and satellite will pass constitutional scrutiny. Even former FCC Chair Michael Powell agrees with me on that point.

The justification for the FCC’s ability to regulate indecency in broadcast rests on two basic premises about the very nature of broadcast media, as set forth in FCC v. Pacifica:

First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder. …

Second, broadcasting is uniquely accessible to children, even those too young to read. Although Cohen’s written message might have been incomprehensible to a first grader, Pacifica’s broadcast could have enlarged a child’s vocabulary in an instant. Other forms of offensive expression may be withheld from the young without restricting the expression at its source. Bookstores and motion picture theaters, for example, may be prohibited from making indecent material available to children.

Both of these are very important tests that fail when applied to cable and satellite. On the first point, regarding the “uniquely pervasive presence,” cable and satellite are subscription services. You don’t just turn on a TV and get them as you do broadcast. Further, even if you own a satellite receiver, you still have to actively subscribe.

I believe that cable and satellite fail to be sufficiently “pervasive” under the Court’s definition.

Secondly, on the point that “broadcasting is uniquely accessible to children,” I think the analogy to movie theaters and bookstores is most illustrative of how cable and satellite differ from broadcast. The Court finds the barriers that these two venues present to children to be sufficient to shield them and different from broadcast. Again, with both cable and satellite, parents may choose not to subscribe to the services, or choose not to subscribe to particular channels. Further, most digital cable systems and all satellite systems allow parents to block out particular channels.

Don’t want your kids to hear the bleeped “fucks” and see the Christmas Poo on South Park? Lock out Comedy Central and you’re done.

Again, I believe the cable and satellite fail this second test, in that they are not nearly as accessible to children, and their content may be easily withheld from children without the aid of regulation.

In making this argument I don’t mean to express agreement with Pacifica. I think the metaphor that compares broadcast signals to an “intruder” is patently and “uniquely” absurd. The argument for protecting children perhaps holds a little more water, but only if you believe that children are easily harmed by a few dirty words — a belief for which there is no record of scientific proof (even while there’s substantial research indicating that violent programming may be more harmful).

What’s most interesting, and disturbing, about what Salon reports is that reactionary conservative and religious forces are preparing to fight the war over “indecency” on multiple fronts, including going after pornography by trying to outlaw it outright.

I’m pretty sure these efforts will fail — does anyone see any lasting effects of Reagan-era attorney general Ed Meese’s report on pornography? Do you even remember it?

It’s political posturing in the vain hope that the dying days of the Bush regime will have some sort of legacy besides the blood of American soldiers and Iraqi citizens, a ballooning debt and oil-driven inflation.

It’s good for us to be awake and aware, but we do no good to overreact.

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When Do “Alternative” Weeklies Cease Being Alternative?

Perhaps the answer to that question is: When their parent companies get as big as the rest of the rest of the media giants.

The SF Bay Guardian has uncovered merger plans for the two reigning giants in the alternative weekly field, the Village Voice and the New Times, creating “an 18-paper chain controlled to a significant extent by venture capitalists.”

That’s about as “alternative” as a new flavor of Mountain Dew.

The article guesses that the new company is being set up so that the whole she-bang can be sold at a profit. The two companies will also have to work with the anti-trusters at the Justice Dept., since the new company would end competition in the weekly newspaper markets of LA and Cleveland.

Now, it shouldn’t come as any surprise that “alternative” weeklies are only alternative to daily newspapers in that they focus more on entertainment and tend to allow edgier content. They are not alternative from the standpoint of management style nor ownership.

That doesn’t mean they don’t occasionally produce good content or challenging stories — but, then, so does the LA Times and Cleveland Plain Dealer.

Rather, whatever “alternative” perspective they once offered during the birth of the alternative weekly as a form in the 1960s and 70s has been entirely captured by the mainstream media form. Gathering them together into one big company is just a culmination of this process.

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Podsafe Music Network: Great Idea, Rotten Terms

I’ve been considering changing the music used on the radioshow for a while, moving to music that I can guarantee is freely useable both on-air and in podcasts. A musician contacted me by email asking me to check out his work at the Podsafe Music Network, where artists can specifically license their songs to be used in podcasts.

So, I went to look around and found I have to register, which is fair enough. But then I read the terms of use. There is one term, in particular, which I believe to be wholly unreasonable and too restrictive for the mediageek radioshow:

8. You agree that a Broadcast or Music Podcast will not: …

b. promote or reference software piracy (warez, cracking, etc.), hacking, phreaking, emulators, ROM’s, or illegal MP3 activity;

Now, I don’t think we promote “piracy” or any of those actually “illegal” activities on the program, but we certainly do discuss them on a regular basis. It’s nigh impossible to talk about modern media and communications law without the topic coming up.

So, I might be able to live with the “promote” prohibition, but it’s the “reference” prohibition that I find unreasaonble. The word “reference” is so vague, that you could be found in violation of the terms of use just by reporting the recent Grokster decision at the Supreme Court.

And what if we discuss the legal and ethical questions of running emulators of obsolete computer hardware on your PC? Nevermind the fact that this can be done legally?

Sure, you might think, “ah, so what? Is anyone really going to hear and decide you’re in violation?”

Maybe not, but the risk is still too high, because if the Podshow company (which runs the Podsafe Music site) wanted to sue me for breach of contract, I’d have to answer in Delaware courts, by the terms of the agreement. Talk about adding expense to insult.

Frankly, these are bullshit terms, and while the idea is good, their execution sucks if you want to retain some reasonable free speech rights.

Luckily, the Podsafe Music Network’s isn’t the only game out there. Dave’s Imaginary Sound Space has a large list of podsafe music resources, and the Creative Commons provides ways to feature and find music that has been specifically licensed for use in podcasts.

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