Re: [dvd-discuss] ClearChannel Plays It Safe

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

Bryan,

Rather than substituting your own words into my writings why don't you try 
reading them first.






Bryan Taylor <bryan_w_taylor@yahoo.com>
Sent by: owner-dvd-discuss@eon.law.harvard.edu
09/21/01 11:06 PM
Please respond to dvd-discuss

 
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        Subject:        Re: [dvd-discuss] ClearChannel Plays It Safe



>
>--- Michael.A.Rolenz@aero.org wrote:
>> 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.
>
>The founding principle of our democratic republic is separation of 
powers. It
>is not the role of an unelected judiciary to substitute their judgement 
on
>policy matters for that of the elected legislative branch of government. 
Only
>when legislative enactments threaten a clear constitutional principle is
>judicial review appropriate. In a democratic society, the best you can 
hope for
>is to have to live with a policy you don't like a little less than half 
of the
>time. 
>


Gee?.isn't that what I wrote. <suggestion> Try rereading it..start with 
"The courts have many times declared policy set by Congress as 
unconstitutional"

In addition, the courts must ALSO review laws and policies not only upon 
constitutional issues but whether or not they are in agreement.  If there 
are two laws on the books, one which states that all lights must be turned 
off after dusk save electricity and another that states that walkway 
lights must be turned on to promote safety - ONE or BOTH of them must go 
because they contradict each other. Is this a contrived example. Not 
really. Look at the DMCA. Even Kaplan had to acknowledge that there were 
provisions in it that are in contradiction to previous law. 

BTW- If the best you can hope for is less than half the time, then that 
states that the finest and best minds in our country can't do better than 
a roulette wheel or a craps table. While moving our government center to 
Vegas may have some appeal, I'd prefer a much better performance.


>You seem to be confusing my explaination of the doctrine of "judicial
>restraint" with some kind of rejection of judicial review altogether. The
>doctine of judicial restraint absolutely permeates American jurisprudence 
from
>its inception to the present day. Generally, strict or intermediate 
scrutiny
>have to be qualified for, with a burden on the claim of violation. 
Failing
>that, you are left with the rational basis test under which Democracy 
almost
>always wins. 
>
>Rehnquist's magnificent opinion in US v. Lopez is the only example I know 
of
>(other than it's progeny) where the Court rejected a law as not meeting a
>rational basis type test.


The problems with your earlier claims of what constitutes a rational basis 
type test are that you fail to see the circular reasoning in them. 
Circular reasoning is inherently irrational.

>
>If you want to discuss specific examples like "land use cases", 
"environmental
>cases", please at least name the case.

CASES. The problem with the land use cases is that there are so many of 
them. Locally I can drive by the Torrance Superfund site on my way home 
from work If I chose to. While visiting my parents, I can drive past the 
Uniontown Superfund site.  Go check out the Mineral Policy Center.



>
>> While Congress may be charged with promoting commerce, I reinterate, 
your 
>> argument comes down to that the means justifies the end. [...]
>
>Quite frankly, yes, this particular means (Democracy) absolutely does 
justify
>the end (policy). This is precisely why I accept the rule of law, even 
though
>it occasionally means I must obey laws I disagree with. You seem to take 
great
>satisfaction reducing my position to this "means justify the end" phrase, 
as if
>you can triumphantly stamp QED.
>


In this instance, one can put QED since you state it as such. That 
argument is fallacious a priori. The fallacy is that ANY policy adopted by 
a Democracy is not necessarily a democratic proposition. Slavery was one 
such policy. 


>> 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. 
>
>In fact, the laws against monopoly are entirely statutory and did not 
exist
>before the time of Theodore Roosevelt. You can search the Constitution in 
vain
>for any hint that Congress must adopt antitrust legislation. I certainly 
am
>glad they did, though.

Most laws are entirely statutory but that does not mean that they are 
unconstitutional nor does it mean that they cannot be traced back to 
something in the Constitution. Promoting Commerce is one reason the 
Anti-Trust laws were enacted. Trusts stiffle competition and do not 
promote the general welfare. That experiment was tried in the 19th century 
and pronounced a failure. Breaking up the trusts DID promote the general 
welfare. After Taft really got going Wall Street couldn't get enough 
trusts busted fast enough. 

>
>> [...] 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? 
>
>That would be Article I, Section 8, Clause 1: "The Congress shall have 
power to
>lay and collect taxes, duties, imposts and excises, to pay the debts and
>provide for the common defense and general welfare of the United States; 
..."
> 


Read the Clause again. It does NOT state that Congress shall INCREASE tax 
revenues. A statement that Congress shall have the power to do BUSINESS 
does not mean that it has a mandate or even a charter to increase tax 
revenues or that it has an obligation to do so. 


>> 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 prove my point. The assumption is that all broadcasting will be by 
big
>players. You basically admit that there is plenty of room for rowboats to
>manuever in and around the ships. Have you ever been near an airport or 
park
>and tuned your AM dial to hear about it? 


Only if You look at SPECTRUM and ignore RF interference issues - there is 
also a distance factor. Freespace loss is 1/r^2 but groundwave losses are 
1/r^n (2<n<4?when you take actual measurements you find that real world 
terrain is NOT the same as theoretical models. Stand in front of a 
baseball backstop sometime with a scanner.). Have you ever heard of the 
near-far problem? It's real and your plenty of little room for rowboats 
isn't there EVERYWHERE. Yeah I've been around the airport. Do you see 
anyone else using that frequency nearby? NOPE. You'll find somebody else 
using it far enough away that NEITHER the airport or the station 
interferes. Did the airport just set up their little transmitter without 
FCC approval. NOPE. (yes I know about unlicensed FM transmitters. They are 
sold with preapproval as FRS and CB radios are. Nevertheless, they are 
also sold as secondary or even NIB (non interfereing basis))

Another thing is that I can get significant interference in adjacent 
channel spectrum. Receivers do not have a brickwall response. The wideband 
active antenna I bought a few years ago for my shortwave didn't work well. 
Why? The KNX (AM) transmitter is about two miles away SHIELDED by a hill 
even. I got intermodulation products from their third harmonic. I called 
the station and got the engineer there. For some reason they had 
authorization to transmit even though the third harmonic was higher than 
it should have been and he told me so. (Next active antenna had a 
preselector).

I won't go into the "chicken" mentality of most of the spectrum management 
crowd that give me a pain the butt BUT it's not a simple or as rosy as you 
seem to think. Nor will I ar


>
>A competent HAM operator could do this exact thing, but NO, it's only the
>government who can have a rowboat, because your beloved FCC declares that
>"there is no right to broadcast" to justify their expansive freedom 
destroying
>regulation which results in me having to choose which set of 20 songs I 
want to
>hear five times a day.
>
>Frankly, if broadcasting was treated exactly like homesteading, I think 
things
>would be vastly superior. The only rule needed is that once you've 
started
>broadcasting on a given frequency, at a given power, from a given 
location,
>that others have to stay a certain interference "distance" away from you. 
Other
>than that, after 1 year of operation (say), you own it. 
>

that was already tried before they started the FCC. The result was a 
fragmented, chaotic and unusable spectrum. You keep ignoring the 
interference issues that require some coordination. I might add that even 
in the military that coordination is lacking so why do you believe that 
suddenly enlightened self interest will take over and everything will be 
okey dokey


>I'd like to return to an idea I touched in a previous post. Just 
broadcasting
>per se is in fact a public service. 

That begs the question. PROVE IT.


>With the advent of subscription based TV
>and radio wire services such as cable TV, you can literally put a dollar 
figure
>per month on the  equivalent value to the end user. Basic cable, say 20
>channels might typically be $10 month (say). A rough calculation would 
tell you
>that a typical individual channel would be worth $0.50 per month per TV. 
You
>could make a similar calculation by examining PBS donations per viewing
>audience. The actual figure is not important, but it's in the range of a 
few
>bucks per year per TV given to the public for free. Giving things of 
value to
>the public is a rational definition of "public service". 

You're begging the question. You have defined ANYTHING broadcast as being 
a "rational" definition of public service. Your definition includes 
EVERYTHING therefore it is not a useful or even a meaningful definition of 
public service.


>
>The MPAA makes a similar argument when they say that without CSS, they 
wouldn't
>have offered movies to the public for sale. Congress fashions Copyright 
law
>precisely to encourage authors to bring their works to market so that the
>public may benefit from them. If you flippantly dismiss this argument, 
you will
>lose every time in Court. It IS a powerful argument, even if it 
ultimately
>fails. The counter argument is that Congress' promotion of commerce in 
works,
>though given wide deference, is never the less constrained by other
>Constitutional principles and allowing mediums of hobbled fair use 
violates
>those.

Your argument fails to note that VHS sales are quite high and the public 
benefitted from that before DVDs were around. 

< is this the same Bryan Taylor who wrote commentary on the DMCA for the 
LOC?>


>
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