May 2 Radioshow Notes & Links

Links and notes related to the May 2 mediageek radioshow:

• FCC Proceeding on localism: http://www.fcc.gov/localism
• Public Knowledge’s Orphan Works Act page: http://www.publicknowledge.org/issues/ow
• Matthew Lasar’s Ars Technica article: NPR’s war on Low Power FM: the laws of physics vs. politics

You can read the full test of the show’s news headlines after the jump.

mediageek 2008-05-02

The House Energy and Commerce Committee might be turning up the heat on FCC Chairman Kevin Martin. Staff members are recommending that the committee hold public hearings in June on Martin’s management practices. In a memo to committee chairman John Dingell and Rep. Bart Stupak who chairs the subcommittee on Oversight and Investigations, the staff write, “The bottom line is that the (FCC) process appears broken and most of the blame appears to rest with chairman Martin.”

One of the major complaints lodged against Martin is that he has been excessively secretive, keeping even his fellow commissioners in the dark about proposed decisions and meeting agendas until the very last moment. The most infamous example of this tactic happened last December when Martin revealed his plan to do away with the newspaper-TV cross-ownership ban in an Op-Ed published in the New York Times before he had even revealed his intentions to the other four commissioners.

In their memo the House Energy and Commerce Committee staff said that their investigation into the Martin’s management is ongoing and said that their recommendation for a public hearing is based on ““more than 30 interviews with current and former [FCC] employees as well as industry representatives and private citizens.”

Speaking of the FCC’s near-total revocation of the cross-ownership ban, on April 24 the Senate Commerce Committee unanimously approved a joint resolution disapproving the Commission’s December party-line vote on that issue. Committee Chairman Daniel Inouye said, “It is clear to me that the Commission rushed its process. The agency rolled back its rules preventing media concentration, despite getting a cautionary light from the Congress that more public comment and more attention to localism and minority ownership was needed before barreling ahead.” A similar resolution is being floated in the House. The resolution has a total of 25 co-sponsors in the full Senate, including both Barak Obama and Hillary Clinton. Senator Obama urged swift passage of the bill, although it’s prospects of rmaking it past President Bush look pretty slim.

At the same time, it looks like FCC Chairman Martin is wasting no time in trying to polish his public image. He held a press conference on April 24 where he announced that topics for open meeting agendas will now be made public on the FCC website at least three weeks prior to each monthly meeting. Until now the practice has been to issue a public notice of the agenda one week ahead. At the same press conference Martin then announced the agenda for the upcoming May 14 meeting. Noticeably absent from the agenda was any consideration of the proposed Xm/Sirius satellite radio merger, which has already been approved by the Justice Dept. That means a decision isn’t likely to happen until late May or June, keeping XM and Sirius execs, as well as some investors, sweating it out, waiting by the phone.

Amateur radio enthusiasts won a victory over the Federal Communications Commission’s plan to encourage deployment of a so-called third pipe in the form of broadband internet over power lines, also known as BPL. The American Radio Relay League, which represents the interests of ham radio operators, sued the FCC contending that the commission’s plans are insufficient to protect against interference with amateur radio, in addition to being inconsistent with existing rules.

On April 25 the DC Circuit Court of Appeals issued a ruling questioning the FCC’s BPL rulemaking process, sending the rule back to the FCC to do over. The Court was critical of the Commission redacting portions of five scientific studies that the FCC commissioned to measure BPL’s interference risks. The Court also said that the FCC had provided no reasoned explanation for why it rejected data submitted by the ARRL that might otherwise have influenced its rulemaking.

Although finding fault with the FCC’s rulemaking process the Court did not agree with the ARRL’s contention that the FCC should require BPL operators to shut down immediately if found to be causing harmful interference. The Court said that the FCC had adequately explained that there isn’t sufficient evidence that harmful interference is a imminent threat.

There are approximately 35 broadband over power line systems in the US, with about 5000 subscribers. The FCC will now have to take another look at this issue, taking into account more critical information provided by the amateur radio community.

Two weeks ago I played you a portion of a scathing keynote criticizing the broadcast industry that was delivered by Tim Robbins to the National Association of Broadcasters convention in Las Vegas. Although NAB spokesman Dennis Wharton laughed off Robbins’ biting critique to the press, it looks like the decision to hire Robbins for the keynote contributed to the ouster of Pam Magnani, formerly senior vice president for meetings and conferences.

April 28 was the deadline to file comments on the FCC’s proposed rules aimed at promoting localism in broadcasting. Many of these rules are unpopular with broadcasters because they call for having staff present during all hours of operation, more record keeping and the establishment of local advisory boards. A coalition of medium size broadcast groups filed joint comments calling the proposed rules “blunt and burdensome,” while the National Association of Broadcasters claimed the rules would have the opposite effect making broadcasters less able to serve the public interest.

Joining the chorus of dissent are 23 Senators and Republican FCC Commissioner Robert McDowell.

Religious radio networks, like K-Love and the Calvary Chapel Satellite Network, urged their listeners to file comments opposing the proposed rules, and hundreds complied. The opposition primarily focused on the requirement to have stations staffed, since most of these stations are satellite-fed for a good portion of their broadcast day, and therefore automated.

At least one community radio broadcaster also filed comments opposing the staffing requirement as burdensome.

One the other side of the spectrum are public interest groups which filed comments in support of the proposed rules, and then suggested some additional ones. Joint comments were filed by The Public Interest Public Airwaves Coalition, Center for Creative Voices in Media, Free Press, and National Hispanic Media Coalition, asking the fcc to require broadcasters that want expedited license renewals to set aside 1% of their airtime for unpaid public service announcements, have no more than 30% of their airtime be infomercials or home shopping, and air a “reasonable amount” of independently produced programming. Moreover, they asked the Commission to reduce broadcast license terms from eight to three years and to commit to acting on petition to deny renewals within 180 days.

The FCC is now accepting reply comments addressing the issues raised in the first round of comments. You can learn more about the localism proceeding and file comments at www.fcc.gov/localism, or go to the mediageek website at mediageek.net

Say a little about intellectual property.

Let’s say that you’re working on a documentary about an historical subject–say the underground press of the 1960s–and you find some archival footage, along with photos and other images that you’d like to use. But you can’t track down the original authors or publishers who own the copyright. Under current law you can’t use these materials in your film without risking legal liability if the copyright owner should surface and object to your using them without permission.

These sorts of materials–where the original copyright holder can’t be identified or located–are known as orphan works. Now two bills have been entered into Congress to try and address orphan works by specifying provisions for finding copyright owners and also terms for using orphaned works when legitimate effort has been made to find copyright holders.

Senate Bill 2913, the Shawn Bentley Orphan Works Act of 2008 and House Resolution 5889, The Orphan Works Act of 2008, are both based on recommendations coming from the Copyright Office. These bills would allow someone to use a copyrighted work without permission only after conducting a “diligent effort” into specified “qualifying searches.” The Copyright Office would maintain and make available search guidelines. In turn if someone who used an orphan work is later challenged, a court would consider whether or not these best practices were followed.

One of the problems that arise when trying to track down the copyright holder of visual works–like paintings or photographs–is that the copyright office’s registry is text based, making it difficult to find a copyright registration unless you know the registered name of the work or the copyright holder. If passed these bills would require the Copyright OFFICE TO CERTIFY private registry services for visual works–a number of which already exist.

If a copyright owner does indeed come forward to claim rights on a work thought to be orphaned, the bills provide for the owner to be reasonably compensated by the author who used their work. Under current law the user of that work would also be subject to punitive civil and criminal penalties.

But, under these bills, if it turns out that the user did not make diligent effort to find the copyright holder, then that user will be subject to the penalties associated with copyright infringement.

Although a lot of consideration was given to protect copyright owners from users who might try to use these bills to cover up what is essentially infringing use, many visual artists, like photographers and illustrators, are still concerned. They worry that the costs and overhead associated with making sure they are findable, such as registering their works with a private registry, will be onerous. Defenders of orphaned works legislation counter that copyright holders do not lose their rights and can still be compensated even if they do not register — the function of registries is to make them easier to find, and therefore more easily able to obtain royalties should they be willing to license their works.

The Internet Archive, Association of Public Television Stations, the Association of Research Libraries and the public interest group Public Knowledge joined together to support the orphaned works legislation, noting that they would bring balance to copyright law if passed. Now the bills need to be taken up by the Senate Judiciary Committee and the House Intellectual Property Subcommittee. To learn more go to publicknowledge.org

On April 30 the House Judiciary Committee took a step to crack down further on piracy and conterfeiting by stiffening penalties and enforcement. It passed the Prioritizing Resources and Organization for Intellectual Property Act, also known as the Pro-IP act, whose chief sponsor is chairman John Conyers. Missing from the recently revised bill is a measure that would have dramatically increased fines for copyright infringement. Still in the bill is a measure allowing federal officials to seize property from convicted copyright infringers who made unauthorized copies of music, movies or live performances.

However, some consideration has been given to the risk that an innocent person’s property might be seized, such as if a person’s wi-fi network were used by a convicted infringer without the owner’s notice. The bill was amended to make clear that there must be a “substantial connection” between the property seized and the violation in question. However it remains unclear how shielded Jane Q Public would be from having her computers confiscated if a convicted pirate used her wifi access point to distribute his wares.

The legislation would also create a new executive-appointed position called the US Intellectual Property Enforcement Representative, modeld on the US Trade Representative.

Nevertheless, the bill is still pretty unpopular in a lot of circles, especially in tech. Surprisingly, it also isn’t popular with the Justice Department, which believes that establishing the IP enforcement representative would undermine its independence.

The original unammended Pro-IP bill was called the “most outrageously gluttonous IP bill ever introduced in the US” by William Patry, former law professor, copyright counsel to the US House of Representatives, author of a new 7 volume treatise on copyright and the current senior copyright counsel to Google. In a blog post dated Dec. 10 Patry wrote, “The question is not whether copyright is a good thing: properly calibrated copyright is very good, indeed essential for certain classes of works. But an excessive amount of something that is beneficial in measured doses can become fatal in overdoses, and copyright is already at fatal strength.”

He goes on to say, “The idea that criminal forfeiture provisions, drafted to reach major drug traffickers like the Columbian cartels, should be inserted into civil copyright tort provisions with a preponderance of the evidence burden, is mind-blowing. The capacity – if not intent – of these provisions for profound mischievousness is obvious: in addition to the gluttonous statutory damages that would be available, content owners now want to defendants to forfeit their computers, their cars, and their homes: all of these can be said to have been used in the commission of infringement.”

As a side note, getting the House to move on the Pro-IP bill doesn’t come cheap. The Recording Industry Association of American spent $2 million in 2007 lobbying Congress for tougher intellectual property laws just like the Pro-IP bill. How many CDs or iTunes purchases does that add up to?

Do you have an opinion on the Pro-IP bill? Communicate it to your House Representative — one phone call can mean a lot.