Re: [dvd-discuss] ClearChannel Plays It Safe

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

The courts have many times declared policy set by Congress as 
unconstitutional and often set aside much of the implementation of various 
policies because they violate the intent of policies. Look at 
environmental cases these days. Look at some of the land use cases. 
Congress cannot just vote something without ultimate review as you appear 
to be claiming. THere are checks and balances. Judicial review is one.

While Congress may be charged with promoting commerce, I reinterate, your 
argument comes down to that the means justifies the end. Consider 
monopoly. Now that is a fine way of promoting commerce and increasing tax 
revenues. What's more it makes getting taxes much simpler. Instead of 
having to get returns from thousands of businesses, the IRS only needs 
one. That is a counter example to your argument that any means that 
promotes commerce and increases tax revenues passes a rational test. Were 
promoting commerce and tax revenues the only criteria, then there is 
nothing to distinguish between any scheme before Congress. BTW- Where does 
it state in the Constitution or the Bill of Rights or Any Amendment that 
one of Congresses goal is to increase tax revenues? 

WRT to caselaw citation. Just read a little further down in the caselaw 
citation you cited in a previous email. That's where my cut and paste was 
from.

Your argument regarding the scarcity of radio spectrum is incorrect.  Not 
only is is a finite resource but there is a scarcity of it - for technical 
reasons. Take a look at your TV listing. Spin through your FM tuner 
sometime. Lots of gaps is what you see and hear? Must be a lot available 
for use? Wrong. The gaps are there to not only to prevent adjacent channel 
interfernce between LOCAL stations in an area but stations farther away. 
You can bet money that if you look at a station map you'll find another 
station operating in between those channels not that far away but far 
enough away that the interference is small. As a result, yes there are 
lots of available frequency channels available in less populated states. 
There may be a fair number available in medium sized cities but there is 
essentually nothing available in the large population centers.  That is 
the reality of the situation.  There is a scarcity. I won't argue that the 
FCC has not been administering all that well. 

BTW ever seen an old 30's vintage radio? You can't turn them on because 
most of them have emission levels that are so high that they cause 
interference with the more sensitive equipment we use today. That's one of 
the reason we have been able to pack more stuff into the spectrum set up 
so far. What we sell has gotten much better than it was 70 yrs ago but it 
can't be made much better without significant costs right now.




Bryan Taylor <bryan_w_taylor@yahoo.com>
Sent by: owner-dvd-discuss@eon.law.harvard.edu
09/20/01 10:01 AM
Please respond to dvd-discuss

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



--- Michael.A.Rolenz@aero.org wrote:

> 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.

My argument is that regarding the use of public resources, Congress 
defines the
objective subject only to a rational basis test. Promoting commerce and
increasing tax revenue is a basis that will pass this test. Courts would
(rightly) look with scorn upon a party who tried to ask them to overturn 
the
democratic process because it is bad policy.

> In several other places you do not answer The point is that mere use 
> *ALONE* doesn not constitute public service. 

See above. If Congress defines it this way, then that is the end of the
argument. I gave an example (homesteading) where they did precisely this. 
With
broadcasting, I now agree that they have asked for a little bit more. The
extent of the increase above mere use is the "Fairness Doctrine", and the
mandatory ads for candidates. 

> Claiming that entertainment 
> constitutes public service is absurd except perhaps to lotus eaters 
> or those in Hollywierd. 

I think I said entertainment and news. As I said, I consider it only a 
small
service to me personally, since I don't do TV or radio much, but I 
recognize
that joe sixpack does rationally consider free access to media to advance 
his
interests. You can call it absurd all you want, but you would be laughed 
out of
court if you tried to make that argument.

The bottom line is that "public service" requirements for use of public
resources are defined by Congress. In a democratic society, unless you 
have a
claim that their definition violates your rights, you have no standing to 
even
challenge this.

> [...] 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. 

You are repeatedly arguing nothing beyond that the US government has made 
bad
policy. The foundation of democratic government is that arguments about 
"bad
policy" is not a sufficient argument to enforce the will of a dissenting
minority. 

> 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. 

Each House of Congress signs bills by majority vote. That is the 
majoritarian
process established by our Constitution. 

I certainly agree Congress is often influenced by special interests. Only 
when
this crosses the line of violating rights do I agree that the results are
illegitimate. People, including those labeled as "special interests" have 
a
Constitutional right to advocate their policy beliefs to Congress. To the
extent that this results in a divergance from what people think is the 
public
interest, they should advocate the changing of the policital process to 
reduce
the influence of special intersts. I support this strongly, but I also 
support
the rule of law under the US Constitution, even when it means that policy 
that
I disagree with is enforced.

> [H]aven't you ever seen an 
> MBA's mind work? <do until retirement :maximize profits for quarter; 
> update resume; get new job; enddo>

I know many MBA's and entrepenuers. To a large extent, I find them to be 
highly
honorable. Corporations create value, employ people, and promote trade. 
Trade
allows me to improve my life. Your incessant corporation bashing 
marginalizes
your entire argument. 

> But in reading the caselaw, there is an telling point
> "[...] Freedom to publish is guaranteed by the 
> Constitution, but freedom to combine to keep others from 
> publishing is not."

By the way, when you quote caselaw or other source, please state where the
quote came from.

I hardly think this principle forces Clear Channel not to forbid their 
DJ's
from playing "99 Red Ballons". This quote does nothing but affirm Clear
Channel's right to publish a set of songs that do not include that one.

In fact, the quote just convinces me further that the problem is that the 
FCC
effectively forbids entry to small players. Basically, there's a lot of 
empty
space on the radio dial, so I don't buy the scarcity argument much. 
Perhaps
it's a finite resource, but I don't see any evidence that it is scarce.

Are you prepared to argue that if you wanted to form a radio station to 
play
only the Clear Channel banned songs that Clear Channel would stop you? 
Unless
there are no available frequencies in your area, I think the quote has no
impact to your argument. Even if there aren't any more available, my guess 
is
that it is FCC policy and not technical limitations that make it so.

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