Communications and Technology Law Projects
A. Media and Youth
IPR has continued to work with a range of clients to protect children from inappropriate marketing and invasions of privacy.
1. Comments on Revisions to COPPA Rule
IPR played a major role in the adoption of the 1998 of the Children’s Online Privacy Protection Act (COPPA). COPPA generally prohibits websites or online service providers directed at children or that have actual knowledge that a user is a child, from collecting or using a child’s personal without first providing adequate notice to a parent and obtaining advance, affirmative parental consent. The Federal Trade Commission (FTC) is charged with implementing and enforcing COPPA. In summer 2010, the FTC began a rulemaking proceeding to update its rules in light of new developments in technology and marketing practices.
In September 2012, IPR filed comments in response to the FTC’s request for supplemental comments on proposed revisions to the COPPA rules. IPR students drafted comments on behalf of a eighteen organizations including the Center for Digital Democracy (CDD), American Academy of Child and Adolescent Psychiatry, Campaign for a Commercial-Free Childhood, Center for Media Justice, Center for Science in the Public Interest, Consumer Action, Consumer Federation of America, Privacy Rights Clearinghouse, Public Citizen, and the Praxis Project (collectively “Children’s Privacy Advocates”). The comments generally supported the Commission’s revised proposals. However, they opposed changing the definition of “directed to children,” because it would undercut the other beneficial proposals and lessen privacy protections for children.
Our comments had a substantial impact on the outcome of the proceeding. On December 19, 2012, the FTC issued an Order that significantly strengthened protections for children’s privacy. Most importantly, the FTC expanded the definition of personal information to include persistent identifiers, geolocation information, and photos, videos and audio files. The revised rules also make clear that behavioral advertising to children is prohibited in the absence of parental notice and consent. In addition, they clarify that websites and online services directed to children are responsible for COPPA compliance by third parties operating on their site or service, and where third parties have actual knowledge of a child, they are also responsible. The FTC Order cited the IPR comments 25 times.
Despite industry attempts to delay the effective date, the revised rules took effect July 1, 2013. IPR has been working with Center for Digital Democracy to educate parents and child advocacy organizations about the revised rules.
2. Request to Investigate Refer-a-Friend Features on Children’s Websites
In August 2012, IPR filed with the FTC five Requests for Investigation on behalf of CDD and sixteen other consumer, media, and youth advocacy organizations. We asked the FTC to investigate and bring enforcement actions against McDonald’s Corporation, which operates HappyMeal.com; General Mills, Inc., which operates ReesesPuffs.com and TrixWorld.com; Doctor’s Associates, Inc., which operates SubwayKids.com; Viacom, Inc., which operates Nick.com; and Turner Broadcasting Systems, Inc., which operates CartoonNetwork.com.
Each of these websites are directed to children and use a marketing tactic known as “refer-a-friend” to induce children to engage in viral marketing to other children. The websites invite children to submit both their own personal information as well as personal information of their friends without obtaining the express and verifiable consent of parents as required by COPPA. Even though the FTC has not taken public action on these requests, the companies named in the requests have apparently stopped using this marketing technique.
3. Requests to Investigate Mobile Apps Directed to Children
In December 2012, IPR students filed two Requests for Investigation with the FTC on behalf of the CDD. Both alleged that mobile apps directed at children were collecting personal information in violation of COPPA.
One request alleged that Mobbles, a mobile game that lets children “catch” virtual pets based on their real location, failed to comply with COPPA’s requirement to post clear and understandable notice of its privacy practices regarding children on its home page and at each area of the service that collected information from children. Mobbles also did not comply with COPPA’s requirement to obtain verifiable parental consent before collecting information such as email addresses from children.
The other request alleges that Nickelodeon and Playfirst falsely represented that the children’s mobile game SpongeBob Diner Dash collects personal data from users “in accordance with applicable law, such as COPPA,” when in fact the app neither provides the type of notice required by COPPA, nor makes any attempt to obtain prior, verifiable parental consent required by COPPA.
4. Requests to Investigate “Educational” Apps for Babies
On August 7, 2013, IPR filed, on behalf of its client Campaign for a Commercial Free Childhood (CCFC), requests for investigation alleging that Fisher-Price and Open Solutions were engaging in deceptive and unfair trade practices by marketing some products as “educational” for babies.
Open Solutions responded by changing its marketing to eliminate the deceptive claims, and CCFC withdrew its request with regard to Open Solutions. However, Fisher-Price is continuing to promote its mobile apps as appropriate for babies as young as six months, claiming that its apps will improve very young children’s learning and skills. However, we could find no evidence to substantiate Fisher-Price’s claims, while studies suggest that allowing very young children to use apps may be harmful. Thus, we asked the FTC to stop these deceptive practices.
B. Accessibility to Telecommunications by Persons with Disabilities;
IPR has continued to represent Telecommunications for the Deaf and Hard of Hearing, Inc. (TDI), a non-profit organization that advocates for improved access to telecommunications, media, and information technology for Americans who are deaf or hard of hearing. In addition to representing TDI, IPR worked closely with a coalition of deaf and hard of hearing consumer advocacy groups, including the National Association of the Deaf (NAD), the Hearing Loss Association of America (HLAA), the Association of Late-Deafened Adults (ALDA), the Deaf and Hard of Hearing Consumer Advocacy Network (DHHCAN), and the Cerebral Palsy and Deaf Organization (CPADO).
1. Closed Captioning of Internet-Delivered Video and Video Device Accessibility
In October 2010, President Obama signed into law the Twenty-First Century Communications and Video Accessibility Act of 2010 (“CVAA”), a landmark update to the Americans with Disabilities Act, the Television Decoder Circuitry Act, and the Telecommunications Act of 1996. The CVAA requires substantially improved access for people with disabilities to advanced communications services and video programming content and devices. Among other things, the CVAA requires the FCC to implement regulations requiring closed captions for Internet Protocol (“IP”)-based video programming services and improvements to the captioning capabilities, user interfaces, and other accessibility features of video programming devices.
Following its work implementing the IP captioning portions of the CVAA from 2011-2012, IPR represented TDI during the summer of 2012 in opposing a petition for waiver from the rules by a large coalition of video programming industry members. The FCC partially denied the petition. IPR attorneys also joined representatives of TDI and other deaf and hard of consumer groups to hold numerous meetings with FCC staff and industry representatives.
In fall 2012 and spring 2013, IPR students tested more than a thousand IP-delivered videos for compliance with the FCC’s rules. As a result of the testing, IPR filed a complaint against Amazon.com for non-compliance with the rules and filed two extensive reports with the FCC regarding the state of IP captioning.
2. Accessible Emergency Information and Video Description
IPR continued its work on the implementation of the CVAA by representing TDI before the FCC in a proceeding regarding the accessibility of emergency information and audio description of video programming. IPR urged the FCC to consider the unique needs of the deafblind community, and IPR students made numerous presentations to FCC staffers.
3. Closed Captions on Television
IPR also worked to support TDI’s continuing efforts to achieve ubiquitous closed captions on broadcast, cable, satellite, and other television programming. In 2012 and 2013, IPR filed comments and oppositions regarding more than 70 new petitions for exemptions from the closed captioning rules.
4. Amicus Brief in Greater Los Angeles Agency on Deafness v. CNN
IPR also assisted in efforts by the deaf and hard of hearing community to attain closed captioning through the courts. In Greater Los Angeles Agency on Deafness v. Cable News Network, Inc., cable network CNN filed an anti-SLAPP (Strategic Lawsuit Against Public Participation) motion against a Los Angeles deaf organization seeking to require captioning on CNN.com under California disability law, arguing that its failure to caption its videos was protected by the First Amendment. IPR filed an amicus brief with the Ninth Circuit Court of Appeals on behalf of TDI, NAD, and HLAA, arguing that closed captioning regulations were consistent with the First Amendment. The case remains pending.
5. Accessibility and Intellectual Property
Finally, IPR continued its work toward harmonizing accessibility and intellectual property policy. First, IPR filed comments before an FCC proceeding considering the problem of patent trolls suing telecommunications companies for complying with the FCC’s 911 rules. TDI urged the Commission to proceed with caution to avoid collateral damage to its public safety regime, including rules designed to ensure access to emergency services for people with disabilities.
IPR also filed an amicus brief in the Second Circuit Court of Appeals on behalf of more than 15 accessibility organizations and researchers in the Authors Guild v. Hathitrust case, which involves efforts by university libraries to make their collections accessible to patrons with disabilities. IPR chronicled the extensive history of Congress’s efforts to make copyrighted works accessible to people with disabilities, and urged the Court to conclude that the accessibility efforts of libraries constituted non-infringing fair uses.
C. Media Ownership
IPR has continued to work with its clients, which include the Office of Communication, Inc. of the United Church of Christ, Common Cause, and National Organization for Women, as well as other public interest organizations such as Free Press and the Leadership Conference and Civil and Human Rights to diversify media ownership.
1. Efforts to Increase Broadcast Station Ownership by Women and Minorities
Having reliable data about the race and gender of media owners is crucial to assessing the extent of such ownership and developing policies to increase opportunities for people of color and women, who had been largely excluded when the FCC awarded broadcast licenses. However, it was not until the late 1990s that, as a result of the efforts of IPR and our clients, the FCC began to collect data on the race and gender of broadcast station owners. IPR subsequently discovered, however, that the way the FCC collected data did not ensure accurate and complete data. Thus, after a rulemaking, the FCC revised its reporting requirements to require all broadcast stations to file revised ownership reports every two years starting in 2009.
In November 2012, the Media Bureau issued a report compiling ownership data from the reports filed in 2009 and 2011. The Bureau Report was issued shortly before the FCC was expected to make a decision in the 2010 Quadrennial Review to relax some of the ownership rules. IPR and its clients and allies meet with FCC Commissioners and staff to express concern that the FCC planned to relax ownership limits before considering the impact of the proposed changes on station ownership by women and people of color, as mandated by the Third Circuit Court in Prometheus II. The Commission responded by providing a brief amount of time in which the public could comments on the Media Bureau Report.
IPR filed comments on the Media Bureau Report in December 2012 and reply comments in January 2013. We pointed out that the percentage of stations owned by women and people of color does not even approach the corresponding percentage of national population that the percentage of broadcast stations owned by women and minorities had in many cases been falling over time. Moreover, the Report provided no analysis of how relaxing the ownership limits would affect the already low levels of ownership by minorities and women of color or even attempt to use the data to analyze the effectiveness of the FCC’s existing or past policies designed to promote diverse ownership.
In February 2013, IPR filed comments on behalf of our clients recommending more improvements to the FCC’s ownership data collection process. We supported the FCC’s proposal to require certain holders of otherwise non-attributable interests to file ownership reports. We also supported the FCC’s proposal to require all entities filing ownership reports to use an FCC Registration Number to facilitate verification and aggregation of the data. We argued that adoption of both proposals was necessary for the Commission and the public to evaluate the effectiveness of existing and/or proposed ownership policies and rules, particularly those related to minority and women. In addition, these changes were necessary steps toward the creation of a database of broadcast owners that could be searched, aggregated and cross-referenced electronically.
In the summer 2013, IPR filed comments and reply on behalf of our clients that addressed a survey commissioned by the Minority Media and Telecommunications Council. We argued that the survey did not support any relaxation of the ownership limits. Specifically, we argued that the survey was extremely limited in scope and its broad conclusions were not supported by the data.
2. Challenges to Mergers Reducing Diversity in Local News
In June 2013, the Gannett Company’s announced its proposed acquisition of twenty television stations from Belo Corp. for $2.2 billion, one of the biggest broadcast acquisitions in recent years. Before this merger can proceed, the FCC must approve the transfer of broadcast licenses. In July 2013, the IPR filed a Petition to Deny the transfer of television broadcast licenses from Belo to Gannett and two shell companies on behalf of IPR’s clients, Free Press, NABET-CWA, TNG-CWA, National Hispanic Media Coalition, Common Cause, and Office of Communication, Inc., of the United Church of Christ.
The petition argued that Gannett’s outright acquisition of the Belo-owned stations in Phoenix, AZ, Louisville, KY, Tucson, AZ, Portland, OR and St. Louis, MO, would violate the newspaper-broadcast cross-ownership rule and/or the local television ownership rule. As a result, Gannett and Belo have orchestrated the transaction so that Belo will transfer the licenses for these stations to a third-party shell company, either Sander Operating Company or Tucker Operating Company, while Gannett will operate the stations through a series of agreements. referred to as joint sales agreements or shared services agreements.
We argued that if approved, the transaction would lead to job losses and a considerable reduction in the quality of journalism for millions of television homes. Moreover, these proposed arrangements are contrary to the spirit of the Commission’s media ownership rules, which are intended to promote diversity, competition, and localism. Even if they do not outright violate the rules, such sharing arrangements are not in the public interest because they reduce the diversity of viewpoints and reduce competition in the provision of local news and the sale of advertising.
In August, IPR filed a joint reply to the oppositions. We showed that the applicants had failed to rebut our prima facie showing that the transfer of these licenses would not serve the public interest. We also disagreed with their claim that the FCC could only address sharing arrangements in a rulemaking. It is a fundamental principle of administrative law that agencies may make policy by either adjudication or rulemaking. While the Commission may ultimately decide to attribute sharing arrangements in the 2010 Quadrennial Review, that possibility does not obviate the need for the Commission to address the public interest questions raised by the sharing agreements in this transaction.
D. Enhanced Disclosure of TV Station Public Inspection Files
After many years of advocacy by IPR on behalf of the Public Interest Public Airwaves Coalition (PIPAC), the FCC finally adopted an order requiring television stations to upload the contents of their public inspection files, including their political broadcast files, to the FCC website so that the public files could be easily accessed by members of the public. The rules took effect on August 2012, before the 2012 election. The Commission initially limited the requirement of uploading the political files to major network affiliates in the top-fifty markets, so as to see how the process worked before requiring all stations to do so.
In the summer 2013, the FCC’s Media Bureau issued a public notice requesting comment on how the filing went and how it might be improved. IPR drafted comments on behalf of PIPAC, the Sunlight Foundation, and the Center for Effective Government. The comments described how Sunlight Foundation and PIPAC member Free Press created the website Political Ad Sleuth to collect information from the political files in the FCC’s database and to make that information more searchable. That experience demonstrated that posting political files online has accomplished many of the Commission’s intended public interest goals, such as reducing the public’s burden in accessing the files. Moreover, the easier availability has allowed effective reporting on electoral and political issues creating a more open political debate that better informs the public.
At the same time, the comments identified a number of problems with the FCC’s process and urged the FCC to improve the online filing process before July l, 2014. The Comments recommended that the FCC adopt data standards and require television stations to upload their political files in a machine-readable format. This approach has already been successfully employed by the Federal Election Commission to implement even more complex reporting requirements. To demonstrate how this might be accomplished, Sunlight developed a demonstration form available online at http://assets.sunlightfoundation.com/fcc-political-form/index.html.
Adoption of this proposal would permit political file data to be easily aggregated and analyzed. The public would benefit from being better informed about important electoral races, issues, and the political process in general. It would allow the public, as well as the Commission, to better monitor broadcast stations compliance with statutory and regulatory requirements. Broadcasters would also be less likely to inadvertently expose sensitive financial information such as bank account numbers from uploading full contracts and checks. Further, it would significantly reduce paperwork burdens for broadcast stations.