IPR seeks to limit excessive concentrations of power, to foster a multiplicity of information sources, and to represent segments of the public, such as children, the poor, people of color, women, and people with disabilities, which have traditionally been underserved or may require special protection. During the 2008-2009 academic year, IPR’s First Amendment and Media Project focused on harnessing new technologies to advance the public good, as well as promoting the public interest in the “traditional” media, such as television and radio, that continue to play a fundamental role in our society.
In the summer of 2008, IPR agreed to represent the National Hispanic Media Coalition (NHMC) to counteract the negative impacts of hate speech in the media. According to FBI statistics, hate crimes against Latinos have increased by 40% in just the past four years. At the same time, hate speech in media has become pervasive. The NHMC believes that the crimes often result from the speech, and has sought a constitutional way to address this problem.
In Fall 2008, students interviewed representatives from the NHMC to assess their goals. The students conducted legal and factual research and wrote a memorandum proposing several options. The NHMC decided to ask the FCC to initiate an inquiry on hate speech in media and the students began drafting the petition.
In Spring 2009, we finalized the petition and filed it with the FCC in late January. The petition gave many examples of hate speech in the media and described how it harmed the public. It requested that the Commission invite public comment on hate speech in the media, inquire into the extent and nature of hate speech, examine the effects of hate speech, including the relationship between hate speech in the media and hate crimes, and explore options for counteracting or reducing the negative effects of such speech. IPR also sent a copy of the petition to the National Telecommunications and Information Agency and asked it to update an earlier report that it had done on hate speech. Petition for Inquiry
IPR Fellow Jessica Gonzalez spoke at the Press Conference at the National Press Club to publicize the filing of the petition. IPR students and staff also accompanied the clients to meetings with FCC Commissioners and staff to encourage them to initiate the requested inquiry.
IPR works with organizations concerned about the effect of media on the health and well-being of children. IPR’s advocacy has focused on the provision of quality children’s educational programming, preventing unfair marketing to children, and examining the effect of food marketing on childhood obesity.
1. FCC Comments on Embedded Advertising
In Fall 2008, IPR students drafted and filed comments and replies in the FCC’s “embedded advertising” proceeding on behalf of two sets of clients, the Children’s Media Policy Coalition (CMPC) and Campaign for a Commercial Free Childhood (CCFC). Embedded advertising is a form of covert marketing which incorporates commercial or branded content into the scenes and plotlines of television programming. IPR students provided extensive analysis of social science research into the psychological effects of covert advertising on children, as well as the effect of prevailing First Amendment jurisprudence on the government’s ability to regulate such practices across television platforms. The comments on behalf of CMPC noted that embedded advertising and the use of interactive links to commercial advertising on children’s programs violated these longstanding policies designed to prevent manipulative advertising and over-commercialism in children’s programming. Thus, CMPC urged the FCC to expressly prohibit these practices in all children’s programming. CCFC’s comments were similar, but in addition, requested that the FCC explicitly prohibit embedded advertisements in all primetime broadcast programming when children are likely to be in the audience as well as programming designed for children. This proceeding is still pending at the FCC. CMPC Comments, CCFC Comments, CCFC Reply Comments
2. FCC Comments on the Child Safe Viewing Act of 2008
In Spring 2009, IPR students drafted and filed comments on behalf of the Children’s Media Policy Coalition (CMPC) and the National Hispanic Media Coalition (NHMC) regarding parents’ ability to utilize technological controls, such as the “V-chip,” to limit their children’s exposure to content that some families might find objectionable. The FCC proceeding was initiated pursuant to the Child Safe Viewing Act of 2008, which directed the Commission to compile a report on the availability of advanced blocking technologies, including the “V-Chip.”
IPR students researched the effectiveness of the V-Chip and ratings systems and drafted comments. The comments filed on behalf of CMPC recommended that: (1) the FCC should ensure that the V-Chip be able to function with multiple independent ratings systems so that parents can use ones that they believe to be most reliable and most consistent with their values; (2) television commercials that are inappropriate for children and programs with embedded advertising be rated so that parents can choose to block such content using the V-Chip; (3) the Oversight Monitoring Board should be made more transparent and accessible to the public so that parents understand the Board’s role and can more effectively participate in the oversight process, and (4) a content descriptor for children’s programming designated as Educational/Informational should be added so that parents can use the V-Chip not only to block objectionable content, but also to affirmatively channel desirable content into their homes. The comments filed on behalf of the NHMC addressed the need for more data regarding the use of the V-Chip and ratings in the ever-growing Latino community, and urged the Commission to translate the current ratings system into Spanish. The FCC’s report to Congress is due at the end of August 2009. CMPC Comments, CMPC Reply Comments, NHMC letter comment
Over the past decade, IPR has been involved in many FCC and court proceedings with the goal of increasing the diversity of broadcast stations owners. Over the past year, our efforts focused on judicial review of the FCC’s newest ownership limits and ways to increase opportunities for minorities and women to own broadcast stations.
1. Ownership Limits
In 2004, IPR successfully argued to the Third Circuit Court of Appeals on behalf of a coalition of public interest organizations including Prometheus Radio, Media Alliance, and Office of Communication of the United Church of Christ, Inc., that the FCC’s decision to substantially relax its media ownership rules was arbitrary and capricious. The court directed the Commission to either adopt new rules or provide better justifications for its rules on remand. In addition, the court directed that the prior limits stay in effect pending its review of the Commission’s action on remand.
In February 2008, the Commission completed the remand. The Commission decided to retain the former limits on the number of television stations serving the same area that could be commonly owned. This represented an improvement over the rule adopted in 2003, which would have allowed a handful of companies to dominate local media.
The Commission also modified its newspaper-broadcast cross-ownership rule, which had prohibited common ownership of a daily newspaper and a broadcast station serving the same community, to allow for waivers in certain circumstances. Although this modification represented an improvement over the 2003 rule, which would have permitted cross-ownership in most communities, IPR’s clients remained concerned that many loopholes remained. Thus, IPR petitioned for review of this 2008 Order.
The broadcast and newspaper industries, however, thought that the FCC should have eliminated the rules all together. They too petitioned for review, but in a different court of appeals. The Ninth Circuit, where IPR’s client Media Alliance had filed, won the lottery and all of the cases were consolidated in that court. However, the industry parties filed motions seeking to send the case to the D.C. Circuit, while IPR argued that the cases should return to the Third Circuit, which had retained jurisdiction over the remand proceedings.
During both semesters, students participated in strategy meetings with co-counsel at the Media Access Project, and prepared various motions, oppositions and replies. Ultimately, the Ninth Circuit granted IPR’s motion to transfer the case to the Third Circuit where it was docketed as Prometheus Radio Project v. FCC, 3d Cir. No. 08-3078 et al.
After the election, it seemed likely that a newly constituted FCC would want to re-examine its ownership decision. Thus, IPR filed a motion to hold the appeals case in abeyance pending FCC reconsideration. The court granted this motion and asked for briefing on whether it should continue the stay in effect. IPR students drafted a briefing arguing that the stay should remain in effect. The Court agreed and ordered that the stay be maintained. Students in the spring semester also drafted an opposition to a motion to transfer a portion of the case to the D.C. Circuit, and a reply in support of IPR’s motion to dismiss certain challenges that had been improperly filed. These matters remain pending before the Third Circuit, and will likely not be addressed until after the FCC acts on reconsideration.
2. Minority and Female Ownership
In July and August 2008, IPR filed comments and replies on behalf of the Office of Communication of the United Church of Christ, Inc., the National Organization for Women Foundation (“NOW”) and others in response to an FCC Further Notice of Proposed Rulemaking on broadcast ownership diversity. The comments argued that facilitating broadcast ownership by underrepresented groups benefits the public by increasing the diversity of programming, breaking down racial and gender stereotypes, providing better service to underserved segments of the population, and remedying past discrimination against women and minorities.
The comments urged the Commission to develop rules specifically designed to enhance opportunities for broadcast ownership by minorities and women. The comments also urged the FCC to revise its reporting and recordkeeping requirements to ensure that both the FCC and the public could accurately and efficiently track and analyze ownership by minorities and women.
In May 2008, the Commission issued an order adopting many of the reporting and record keeping proposals that were made in the comments filed by IPR. The Commission also sought comment on whether, and how, to require reporting of race and gender information by non-commercial educational broadcasters and low power FM broadcasters. The comments argued that all broadcast radio and television station licensees should report this data to ensure that both the public and the Commission would have an accurate and comprehensive picture of the state of broadcast media diversity. Moreover, because non-commercial and low power stations often provide entry points for minorities and women, collecting this information was particularly important. The comments also made several recommendations designed to provide the Commission and the public with necessary data on ownership diversity while minimizing the onus on those broadcasters who are typically constrained by limited resources and staff.
