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First Amendment & Media Law Projects
A. Accessibility to Telecommunications by Persons with Disabilities
In July 2012, IPR was awarded the prestigious Accessibility Award for Exemplary Commitment to a Barrier Free Internet at the 51st Biennial Conference of the National Association of the Deaf (NAD) in Louisville, Kentucky. IPR received this award because of its work on behalf of 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 works 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.
In the fall 2011, IPR drafted comments and reply comments filed in the FCC’s rulemaking to implement the CVAA’s IP captioning requirements. In addition to filing comments, IPR attorneys joined representatives of TDI and other deaf and hard of consumer groups to hold numerous meetings with FCC staff and industry representatives.
In January of 2012, the FCC released an order adopting rules requiring IP-delivered video to be captioned for the first time and requiring substantial improvements to the captioning capabilities of various video playback and recording devices. The FCC adopted many of the proposals and interpretations in the deaf and hard of hearing groups’ comments.
IPR also drafted a petition for reconsideration of the order seeking broader coverage of captioning for video clips and caption synchronization standards, and drafted an opposition to an industry petition for reconsideration seeking to overturn favorable portions of the order, including captioning capability requirements for DVD and Blu-ray players. IPR also drafted an opposition to two industry petitions for waivers from the rules, and succeeded in persuading the FCC to strike one of them down. Finally, IPR drafted comments submitted to the Office of Management and Budget (OMB) successfully urging approval of key provisions of the FCC’s order. IPR continues to assist TDI and other deaf and hard of hearing consumer groups on the FCC’s ongoing consideration of accessible user interfaces for video programming devices.
2. Closed Captions on Television
IPR has worked to support TDI’s continuing efforts to achieve ubiquitous closed captions on broadcast, cable, satellite, and other television programming. In fall 2011, following years of efforts by deaf and hard of hearing consumer groups, the FCC reversed nearly 300 exemptions to the closed captioning rules that had been improperly granted several years earlier. At the same time, the FCC sought comments on the standard to be used in evaluating exemption requests. IPR drafted comments for TDI and others strongly supporting the Commission’s tentative construction of the term “economically burdensome” as consistent with Congressional intent.
The FCC adopted this standard, and began once again to seek public comment on requests for exemptions. In 2012, IPR filed comments and oppositions regarding more than 30 new petitions for exemptions from the closed captioning rules. IPR also filed comments with the OMB regarding the television exemption petition process.
3. Accessibility and the Digital Millennium Copyright Act
In addition to pursuing closed captioning requirements at the FCC, IPR also advocated at the United States Copyright Office of the Library of Congress to ensure that copyright law does not interfere with the development of closed captioning and other accessibility technology. Under the Digital Millennium Copyright Act (DMCA), the Copyright Office conducts a triennial rulemaking to permit noninfringing users of copyrighted works, like video programs, to circumvent technological protection measures designed to control access to the works.
In fall 2011, IPR drafted a proposal for TDI, filed along with the Participatory Culture Foundation and Gallaudet University, to exempt the addition and improvement of accessibility features like closed captions for IP-delivered and DVD- and Blu-ray-based video from the DMCA’s anticircumvention measures. IPR also prepared reply comments and met with staff of the National Telecommunications and Information Administration (NTIA) regarding the exemption, and IPR staff attorney Blake Reid testified in favor of the exemption along with representatives of deaf and blind consumer groups and an accessibility researcher from Gallaudet University at the Copyright Office in June 2012. The exemption proposal is currently pending.
B. Media and Youth
1. Amicus Brief in Fox II
In FCC v. Fox Television Stations (“Fox I”), the FCC sought review of a lower court decision finding that its policy against broadcasting indecent material violated the Administrative Procedure Act. IPR filed an amicus brief in that case on behalf of a coalition of children’s advocacy groups, including the American Academy of Pediatrics, American Academy of Child and Adolescent Psychiatry, and other organizations concerned with the well-being of children. In 2009, the Supreme Court reversed the lower court and remanded for further consideration as to whether the FCC’s policy was constitutional. The lower court concluded that the policy violated the First Amendment and the FCC appealed.
IPR filed an amicus brief on behalf of the same coalition in Fox II, agreeing that the FCC’s current indecency enforcement regime was unconstitutionally vague and left parents without a clear idea of what their children might see or hear while watching broadcast television. The brief argued, however, that the Court should not go beyond vagueness to resolve the case as some parties had requested. The brief explained that disturbing long standing precedents was unnecessary and could have negative consequences by, for example, casting doubt on the constitutionality of the Children’s Television Act of 1990 (“CTA”). The brief argued that if the Court nonetheless chose to evaluate the FCC’s indecency regime under a heightened level of scrutiny, it should reject the proposition that the V-Chip and underlying ratings provided an equally effective, less-restrictive alternative to government regulation.
At the oral argument, the Solicitor General referred to the coalition’s brief in responding to questioning from the Court about why the V-Chip was an insufficient alternative to regulation. The Court affirmed the lower court decision on due process grounds without resolving the First Amendment question. The decision, issued in June 2012, cited Professor Campbell’s article, Pacifica Reconsidered: Implications for the Current Controversy over Broadcast Indecency, 65 Fed. Comm. L. J. 195 (2010).
2. Requests for FTC Investigation of Deceptive or Unfair Marketing
IPR worked with client organizations to draft requests for investigation on of unfair or deceptive marketing practices involving children or children’s products.
i. Your Baby Can Read
Your Baby Can Read! (“YBCR”), is a set of DVDs, books, and flashcards that retails for approximately $200. For the past several years, it has been advertised widely on television and the internet. In April 2011, IPR filed a Request for Investigation on behalf of Campaign for a Commercial-Free Childhood. We asked the FTC to bring an action against the makers of YBCR because the company’s claims that use of this product teaches babies to read and helps children do better in school later on were false and misleading.
The FTC agreed. In August 2012, the FTC filed a complaint seeking an injunction, refunds and other relief against the company, its President, and the creator of YBCR. Two of the defendants settled, and agreed to cease making misrepresentations, including the use of the name “Your Baby Can Read” and to pay a fine.
ii. PepsiCo’s Deceptive Marketing of Doritos to Teens
In October 2011, IPR filed a Request for Investigation with the FTC on behalf of the Center for Digital Democracy and other organizations asking the agency to investigate and bring an enforcement action against PepsiCo for deceptive and unfair marketing practices targeting junk food—Doritos—to teens. The Request identified three ways in which PepsiCo’s digital marketing tactics are deceptive to teens. First, it disguised its marketing efforts as entertaining videogames, concerts, and other “immersive” experiences, making it more difficult for teens to recognize such content as advertising. Second, it claimed to protect teen privacy while collecting a wide range of personal information, without meaningful notice and consent. Finally, it used viral marketing techniques that violate the FTC’s endorsement guidelines. After the Request was filed, PepsiCo took down some of the marketing that we objected to, including the popular horror-themed advergames Hotel 626 and Asylum 626.
iv. Refer-a-Friend Features on Children’s Websites
In August 2012, IPR filed five separate 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, because they are violating the COPPA Rule.
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 either set of parents as required by COPPA.
We also found that at least one website, HappyMeal.com, was collecting children’s photographs and storing them in a publicly-accessible directory. Several websites were also placing third-party cookies on the computers of children who visited to play games, including those visiting at the recommendation of a friend. Soon after we filed our complaint, McDonald’s discontinued these practices.
3. Comments on Revisions to COPPA Rule
In September 2011, the FTC requested comments on a number of proposed revisions to its rules implementing COPPA, which had not been updated since they were first promulgated in 1999. IPR filed comments on behalf of seventeen consumer health, privacy, and child advocacy groups endorsing the Commission’s proposal to update those rules. Our comments strongly supported proposals to bring the rule up to speed with contemporary data collection and marketing practices. Some of the most important proposals our comments supported were:
• Expanding the definition of “Personal Information” to include such data as screen and user names; persistent identifiers associated with cookies and similar technologies; photographs, videos, and audio files uploaded by users.
• Ensuring COPPA’s privacy protections cover the expanding array of digital platforms, including mobile devices, geo-location-based services, and Internet-connected games.
• Revising the “Notice” requirements in order to improve transparency of data collection and marketing and ensure that parents can access user-friendly information about a company’s privacy policies in order to make informed decisions about their children’s privacy.
In September 2012 we filed supplemental comments detailing additional updates to address troubling marketing techniques we uncovered in our research on Refer-a-Friend.
C. Ensuring that Broadcast Stations Serve the Public Interest
IPR has been working with organizations known as the Public Interest Public Airwaves Coalition (PIPAC) since 2000 to ensure that television stations are accountable to the communities they serve. In late 2007, the FCC adopted a standardized form for television station to report on their public interest programming and required that these forms be available on a station’s website. However, due to overwhelming opposition of station owners, the FCC never took the steps necessary for these requirements to take effect.
In the summer 2011, PIPAC developed a new, streamlined proposal which was presented to the FCC in August. PIPAC recommended that the FCC eliminate paper forms and adopt online reporting requirements. PIPAC also recommended that the FCC limit its information collection to critical information and to place all of the reports in a searchable online database. The FCC sought comment on these proposals in two different dockets.
1. Enhanced Disclosure
In October 2011, the FCC issued a Further Notice in Standardized and Enhanced Disclosure for Television Broadcast Licensee Public Interest Obligations, Docket No. 00-168. The FCC proposed that television stations upload the contents of their existing public files to an online data base hosted by the Commission. PIPAC filed comments generally supporting this proposal. PIPAC addressed objections raised by broadcasters in Reply Comments and ex parte meetings.
In April 2012 the FCC adopted an order implementing the online filing requirement. Significantly, it requires television stations to upload the contents of their political files, which include records of time sold to political candidates and their supporters and opponents. The National Association of Broadcasters sought judicial review and a stay of the FCC’s order. On behalf of PIPAC, IPR filed an opposition to the stay motion. The Court denied the stay request thus allowing the rules to take effect on August 2, 2012.
2. Standardized Reporting Form
The Commission sought comment on PIPAC’s proposal for a streamlined information collection form to take the place of issue-programs lists in a separate Notice of Inquiry in Docket No. 11-189, Standardizing Program Reporting Requirements for Broadcast Licensees. IPR filed comments and reply comments in support of this proposal on behalf of PIPAC in early 2012.
D. Media Ownership
1. Media Council Hawai`i Complaint
In November 2011, the FCC’s Media Bureau denied the complaint and request for emergency relief that IPR had filed on behalf of the Media Council Hawai`i. The complaint had alleged that by means of a series of agreements, one company was controlling three Honolulu television stations (including two top 4 ranked stations) in violation of the FCC’s local television rule. IPR filed an application for review with the FCC, which is still pending.
2. 2010 Quadrennial Review
In July 2011, the Third Circuit reversed and vacated the FCC’s decision in the 2006 Quadrennial Review. It agreed with IPR’s clients that the FCC had failed to give adequate public notice of is proposed changes to the newspaper-broadcast cross-ownership rule and failed to address how its proposals affected opportunities for minorities and women to own broadcast stations. The Supreme Court denied review.
In December 2011, the FCC issued a Notice of Proposed Rulemaking in the 2010 Quadrennial Review. It sought comment on the Third Circuit’s remand and other matters. One question for comment was whether sharing arrangements, such as the one at issue in the Hawai`i complaint, should be counted as ownership for purposes of the local television rule.
IPR drafted comment on behalf of Office of Communication of the United Church of Christ, National Organization for Women Foundation, Communications Workers of America and others. The comments addressed two main issues – shared services arrangements and ownership by minorities and women.
The comments supported treating sharing arrangements as ownership interests where they are used to exercise substantial influence over the operation of another station in the same market. Our comments proposed a bright line, multifactor test to determine which sharing arrangements should be attributed.
The comments agreed with the concerns expressed in a letter from the Leadership Conference on Civil and Human Rights that the Commission was repeating the mistakes of the Bush Administration by permitting further media consolidation without taking long-overdue action to promote ownership opportunities for people of color and women. The IPR comments also addressed how most of the proposals made by the Commission would exacerbate the problem of already extremely low levels of ownership by women and minorities. They urged the Commission to assess the effectiveness of race- and gender-neutral policies and to improve its data collection and analysis.
In reply comments, we presented an analysis of data obtained from the FCC on minority ownership of full-power commercial television stations. This analysis showed that the state of minority ownership was even worse than the numbers alone might indicate. Not only was the percentage of minority-owned stations far below the percentage of each group in the population, but most minority stations tended to be located either in small markets or on the fringes of larger markets and only a handful were affiliated with a major network. Moreover, many states and cities with large minority populations had no minority-owned stations. We are still waiting for the Commission to complete the 2010 Quadrennial Review of its broadcast ownership limits.