Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘broadcasters’

Great moments in media concentration law

This is just absurd: to comply with federal regulations barring owners of daily newspapers from also owning local broadcast stations, the owner of the venerable Dayton Daily News in Ohio may knock it down to three-times-a-week publication so that it won’t count as a daily anymore. Keith J. Kelly of the New York Post spotted the story, Cox Media Group outlined the plan in a press release a few weeks ago, and Joshua Benton at Nieman Lab has more:

To increase the quality of local journalism in Ohio, the Federal Communications Commission is requiring three newspapers to stop printing daily….

Did you get that? To strengthen the local news ecosystem in Dayton, the government is making its biggest newspaper publish less.

The rules date back to 1975 when the Federal Communications Commission (FCC) adopted regulations barring cross-ownership of local broadcast and newspaper properties while grandfathering in existing arrangements. It was never a good rule, but progressive social critics then as now traced countless social ills to media concentration and for-profit ownership of the press (what’s new these days is that populist conservatives crusade against the corporate media too).

Don’t blame today’s FCC. Two years ago the agency voted to scrap the decades-old newspaper/broadcast cross-ownership rules, recognizing that the local news market had gone through convulsive changes in the meantime, with new media sources cutting deeply into ad revenues and the economics of newspaper publishing taking one deep hit after another. (Local broadcasting economics has suffered too, even if not as badly.) But opponents sued, and in September a Third Circuit panel struck down the deregulatory effort, a move that immediately called into question the terms of a pending deal transferring partial control of the large Cox Media Group, which got its start long ago with the venerable Dayton paper.

Others, such as Jonathan Rauch, have pointed out that antitrust laws may need easing anyway if newspapers are to organize successful ways to finance journalism in the online economy. And as we’ve warned before, there are special dangers in unleashing antitrust law on the media sector, where it can leave government with a corrupting influence over whether opposition papers are profitable and who gets to own them. But does anyone really think Dayton residents are better off if their local newspaper stops publishing every day?

[cross-posted from Cato at Liberty]

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“One of the most ridiculous threat letters”

Charles Harder, a lawyer representing Donald Trump, last month “sent what has to be one of the most ridiculous threat letters I’ve seen (and that’s saying something) to CNN promising to sue the company for its ‘biased’ coverage of the possible Trump impeachment process.” Rather than defamation, a frequent cause of action threatened by Trump, the letter invokes the Lanham Act, alleging that the network is engaged in false advertising by describing itself as employing “journalists” who are “fair and balanced.” “Everything about the letter is pretty crazy, especially from a President whose fans like to pretend he he supports free speech.” [Mike Masnick, TechDirt]

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Free speech roundup

  • Fourth Circuit rejects gag order on parties and potential witnesses in North Carolina hog farm litigation [Eugene Volokh]
  • Eighth Circuit, interpreting Missouri law’s obligation to register as “lobbyist,” leaves open possibility that requirement extends to unpaid lobbyists, also known as concerned citizens [Jason Hancock, Kansas City Star; Institute for Free Speech on Calzone v. Missouri Ethics Commission]
  • “9 Months in Prison for Forging Court Orders Aimed at Vanishing Online Material” [Volokh] Per one account at least 75 fake court documents have been sent to Google as part of takedown efforts, including an order purporting to come from the UK Supreme Court [same]
  • The accused pipe bomber had made online death threats against Ilya Somin, libertarian lawprof and friend of this site. Lessons to draw? [Cato Daily Podcast, more]
  • Entanglement of press and state leads nowhere good: Canadian government to allocate C$600 million in subsidies to newspapers and legacy media [Stuart Thomson, National Post; earlier on press subsidies here, here; some Canadian background from 1983]
  • Court: First Amendment doesn’t protect Comcast from bias charge over its decision not to carry block of black-owned TV channels [Jon Brodkin, ArsTechnica]

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AT&T Time Warner merger

My new piece at CNN begins by noting that antitrust law has moved on since the Truman era, even if the U.S. Department of Justice hasn’t quite:

In 1948 the US Supreme Court ordered Hollywood studios to sell their movie theaters, following the then-popular idea that the government should police marketplace competition by restraining businesses’ vertical integration — or as we might put it these days, by ordering content kept separate from distribution.

The surprise in 2018 is not so much that US District Judge Richard Leon rejected the government’s challenge to the $85 billion AT&T-Time Warner merger. That much was expected by most antitrust watchers. The shock came from the stinging way he rejected the government’s evidence — using language such as “gossamer thin” and “poppycock.”

CNN, of course, is owned by merger participant Time Warner. The question is not whether vertical integration will happen in video delivery, but whether older companies will be allowed to catch up. For Washington to block a merger like this, I suggest, “would be as futile as attempting to separate Net from Flix or You from Tube.”

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A panic over replicated local TV news

Sinclair Broadcasting, currently under fire for having local news talent read a canned script, is itself the product of earlier rounds of anti-media-consolidation rules, and tales of “70 percent market share” tales are sheerest bunk, reports Matt Welch [Reason] On local use of canned scripts, see also the regular Conan feature “Newscasters Agree.”

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Trump: we’ll go after their broadcast licenses

“With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!” — @realdonaldtrump Wednesday morning. Later that day he tweeted, “Network news has become so partisan, distorted and fake that licenses must be challenged and, if appropriate, revoked. Not fair to public!”

As was quickly pointed out [AP], the chances are extremely remote that presidential wrath is actually going to cost any broadcasters their licenses (networks as such are not licensed, but their local affiliates are, including network-owned local stations). First Amendment attorney Floyd Abrams said that the threats could nonetheless have a chilling effect on coverage: “The threat, however unlikely, is one that broadcasters will have to take seriously.”

Note that the threat is utterly inconsistent with Trump’s having recently reappointed Ajit Pai to head the FCC. Had the chief executive seriously contemplated a drive against the broadcast licenses of his foes, as a 1960s-era president might have done, Washington is full of aspiring agency heads who would have served his ends better than free-marketeer Pai. Not for the first time, it would seem we have a President whose Twitter hand knows not what his signing hand is doing.

Matt Welch has already dug up a speech by Pai last month, as reported in Variety, that is to the point:

Pai said that he also sees “worrying signs” at the FCC, pointing to Twitter messages in which “people regularly demand that the FCC yank licenses from cable news channels like Fox News, MSNBC, or CNN because they disagree with the opinions expressed on those networks.”

“Setting aside the fact that the FCC doesn’t license cable channels, these demands are fundamentally at odds with our legal and cultural traditions,” Pai said.

John Samples reminds us of the bad bipartisan history of power plays aimed at broadcast speech, which didn’t work for Richard Nixon. David Harsanyi writes that “even if you’re not idealistic about free expression, it might be worth remembering that any laws or regulations you embrace to inhibit the speech of others, even fake-news anchors, can one day be turned on you.”

Of course, another theory one hears is that Trump doesn’t really mean it with his loose talk about curbing press freedom but is just, as it were, vice signaling.

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