Re: [dvd-discuss] ClearChannel Plays It Safe

[Michael.A.Rolenz(at)aero.org]

There are several *technical* problems with your arguments which 
invalidate them.

In several instances you make the statement that because the government 
has an interest in promoting commerce, that this end justifies the means. 
This is not valid as a  rhetorical argument or historically.

In several other places you do not answer The point is that mere use 
*ALONE* doesn 
not constitute public service. Claiming that entertainment 
constitutes public service is absurd except perhaps to lotus eaters 
or those in Hollywierd. There is something distinctly odd about 
claiming that the public gets service for paying to use a public 
resource. That's a dangerous argument that the mining community 
has been using to literally rape the land for centuries. They can pay 
dollars an acre, gut the land to extract the minerals, then leave the 
tailing and pollluted water around for the government to clean up. 
Does the revenues and taxes on the minerals pay for the clean up. 
NO. Does it pay for dealing with the Local economics after the 
mine closes NO. But a lot of people enjoy the benefits of commerce from 
extraction and later cleaning up the land-a small number. Take the TOTAL 
revenue minus the cost of clean up and you find that the GENERAL public 
takes a loss for the benefit of the few. 

In another place you appeal to the authority  of "Majoritarian processes" 
yet later state that Congress sets that policy. Not only is this 
contradictory but as recent history has shown, Congress can be influenced 
GREATLY by special interests with lots of money to throw at those special 
"dispensations" for those special people. 

You made the statement that "I have yet to see any company whose mission 
statement says "maximize profits"....get real! You won't see any that is 
trying to minimize profit or go out of business. And you certainly won't 
see a company's stock go up if they don't try. haven't you ever seen an 
MBA's mind work? <do until retirement :maximize profits for quarter; 
update resume; get new job; enddo>


But in reading the caselaw, there is an telling point

"The First Amendment, far from providing an argument against application 
of the Sherman Act, here provides powerful reasons to the contrary. That 
Amendment rests on the assumption that the widest possible dissemination 
of information from diverse 
and antagonistic sources is essential to the welfare of the public, 
that a free press is a condition of a free society. Surely a command 
that the government itself shall not impede the free flow of ideas 
does not afford nongovernmental combinations a refuge if they 
impose restraints upon that constitutionally guaranteed freedom. 
Freedom to publish means freedom for all and 
not for some. Freedom to publish is guaranteed by the 
Constitution, but freedom to combine to keep others from 
publishing is not."


And that is the issue with a conglomerates, monopolies, cartels, trusts. 
Without the free flow of ideas even the "idealistic" notion that commerce 
provides a rational basis" cannot work. Why, rational basis requires 
rational thought. Rational thought requires competing ideas and the 
examination of alternatives. No alternatives, no competing thought, no 
rational thought.




Bryan Taylor <bryan_w_taylor@yahoo.com>
Sent by: owner-dvd-discuss@eon.law.harvard.edu
09/19/01 02:31 PM
Please respond to dvd-discuss

 
        To:     dvd-discuss@eon.law.harvard.edu
        cc: 
        Subject:        Re: [dvd-discuss] ClearChannel Plays It Safe



--- Jeme A Brelin <jeme@brelin.net> wrote:

> > > The use of public resources brings the responsibility of public
> > > service.
>
> > What is the legal basis for this? Public service is an entirely
> > voluntary activity as far as I'm concerned. It might be admirable, but
> > it certainly isn't obligatory.
> 
> The Telecommunications Act of 1933 and 1996 and FCC regulations.

There is a very good summary of the radio/TV first amendment law at
http://caselaw.lp.findlaw.com/data/constitution/amendment01/17.html#6

I was somewhat surprised to find that there is some legal support for your
position. My arguments fairly state the legal standards in the newspaper 
arena,
as typified by Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974). 

The basic rationale for greater regulatory control over broadcast speech 
is the
scarcity principle, which is described at length in the above findlaw 
article.
 
The "Fairness Doctrine" requires broadcasters to present both sides of a
political issue, but does so within the context of editorial discretion, 
and
does not require them to accept paid advertising from third parties CBS v 
DNC
412 U.S. 94 (1973), with the limited exception of political candidates CBS 
v
FCC 453 U.S. 367 (1981). 

I think it safe to say that under the standard of CBS v DNC, a station can 
ban
the playing of "99 Red Balloons" if it wants to, unless a candidate for 
office
wants to use that song in their commercial. Since the DJ employee of the 
radio
station is not such a candidate, they have no claim.

> > Due process of law requires whatever consideration must be given for
> > use of public resources to be specified unambiguously ahead of time.
> > Often the public service IS the use of the public resource.
> 
> What?  Simply USING a public resource is not a public service.  That's
> absurd.

I think that's up to the public, not you. The fact that use itself can be 
a
public service was the idea behind homesteading. The public is served by 
an
increase in commerce and trade. The public benefits from broadcasting per 
se
because of increased tax revenue and greater access to news and 
entertainment.
Some reasonable regulation applies based on the scarcity princple, but due
process of law requires these to be specified ahead of time, which they 
were.
 
> Public resources must be used IN THE PUBLIC INTEREST.  If the stewards 
of
> our public resources (our government) fail to enact sufficient
> requirements for public service in exchange for limited use of public
> resources, then they have failed.

Majoritarian processes will determine what the public interest is, and 
would
generally be subjected only to a rational basis test by courts. Promotion 
of
commerce alone would provide such a rational basis. You can argue that 
it's bad
policy, but at the end of the day, Congress has the Constitutional power 
to set
that policy.
 
> > I have no doubt that companies use their broadcasting rights in a way
> > that they feel is moral. When you disagree, don't listen to them.
> 
> A corporation is not moral.  It has one objective: To maximize profits. 
> Any other goal could undermine that purpose and spell certain death.

Corporations are nothing more than associations of individuals, and have 
as
diverse objectives and goals as the people who run them. Compare Red Hat 
with
Microsoft. In the same basic market, one is moral, one is not. I have yet 
to
see any company whose mission statement says "maximize profits", but if 
that's
how they want to try to obtain happiness, then good for them. By engaging 
in
trade they only offer you additional options that you are free to accept 
or
reject. 

> PR and tax deductions are both methods used to maximize profits.
Yawn.

> Monopolies and oligopolies would only be MORE prevalent if broadcast
> rights were treated like property, bought and sold to the highest 
bidder.

I profoundly disagree. In fact, I'd argue that the failure to treat 
broadcast
rights like property is what makes radio and TV so bland. The FCC has 
regulated
small players out of the market, and it's only this governement 
intervention
that stiffled the medium. If I have an innovative radio idea, I simply 
can't
get onto the AM or FM spectrum, even though there is plenty of unused 
bands on
my radio dial. My ability to compete is stiffled by government, not Clear
Channel.

> It would only be a matter of time before wealthiest had all the rights 
to
> broadcast.

Small business is the engine of the economy and always bears the least 
ability
to cope with governement regulation.

Regarding whether broadcasting is a "public forum", I said it isn't, and 
you
said:
> I think you should re-read both of the Telecommunications Acts and come
> back.  You're sorely mistaken.

The seminal case in finding the boundary of the "public interest" 
obligation of
broadcasters is CBS v. Democratic National Committee mentioned above. Here 
the
court reasoned this way in rejecting a supposed "right of access" in favor 
of
"journalistic discretion":

<quote CBS v. DNC, 412 U.S. 94, 120-121 (1973)>
More profoundly, it would be anomalous for us to hold, in the name of 
promoting
the constitutional guarantees of free expression, that the day-to-day 
editorial
decisions of broadcast licensees are subject to the kind of restraints 
urged by
respondents. To do so in the name of the First Amendment would be a
contradiction. Journalistic discretion would in many ways be lost to the 
rigid
limitations that the First Amendment imposes on Government. Application of 
such
standards to broadcast licensees would be antithetical to the very ideal 
of
vigorous, challenging debate on issues of public interest. Every licensee 
is
already held accountable for the totality of its performance of public 
interest
obligations. 
</quote>

> Oh, and while you're at it, read "The Media Monopoly" by Ben Begdikian 
and
> "Rich Media, Poor Democracy" by Robert W. McChesney.

If these are on the web, link them and I'll take a look. Generally, 
though, I
prefer to read caselaw directly and to form my own opinions.

Please keep in mind that I really detest the content of most broadcast 
radio
and TV stations. These have replaced religion as the opiate of the masses.

__________________________________________________
Terrorist Attacks on U.S. - How can you help?
Donate cash, emergency relief information
http://dailynews.yahoo.com/fc/US/Emergency_Information/