Media Law Exam 3 study guide

Richmond Newspapers v. Virginia

(1980): fractured majority opinion, relying on historical nature of public trials, the necessity that trials be public as a check and balance on putting citizens in jail, and notion that constitutional guarantees of free speech and press, and the rights to assemble and petition government "share a common core purpo

Nationalist Television v. Access Houston Cable

(5th Cir. 1999): Houston franchise rule to give preference to locally produced programming on PEG permissibly advanced government interest in programming diversity. Practice of charging a fee for all non-locally produced programs was content-neutral and did not distinguish between favored and non

Four Privacy Torts

1. Appropriation 2. Intrusion 3. False light 4. Disclosure

Verizon v. FCC

But after the FCC issues order in 2010 to impose new network neutrality rules for fixed broadband providers and mobile broadband providers, the same federal court held FCC could not impose common carrier style regulations on Internet access unless it first classified Internet access as a telecommunications service—something the FCC had refused to do dating back to 2002.

Home Box Office v. FCC, 567 F.2d 9 (D.C. Cir. 1977)

•Facts: As technology progressed, national cable networks emerged with new programming by subscription service transmitted by satellite to CATV. FCC tried to restrict by forbidding newer movies and major sporting events. Stated purpose was to prevent competitive bidding away of popular program material from free television to a service in which the audience paid a fee to see the same material. HBO challenged. •Issue: Can FCC regulate content in this manner? •Held: (1-1-1) No. There was insufficient evidence supporting the FCC rule and its restraints were greater than necessary to further a legitimate government interest.

Nixon v. Warner Communications

•(1978): Media challenged court ruling that it could not make copies of Oval Office audio tapes that were introduced as evidence at a criminal trial. The court said no statute applied and the common-law right of access to judicial records did not authorize release from court custody, so the decision whether to allow copying of tapes is left to sound discretion of trial court.

Press-Enterprise Co. v. Riverside County Superior Court

•(1988) (Press-Enterprise I): Court unanimously ruled closure of voir dire violated the First Amendment, again justified by historical and importance of open proceedings. Court held the presumption for openness can be overcome only by an overriding interest that closure is essential to preserve fair trial and narrowly tailored to achieve that interest.

Missouri Knights of the KKK v. Kansas City

•(W.D. Mo. 1989): KKK wanted access to KCMO cable access channel. City removed access requirement from city's cable franchise, so operator stopped providing the channel and KKK had no way to offer its program.

McClellan v. Cablevision of Connecticut

•2nd Cir. 1998): plaintiff broadcast on access channel program containing sexually explicit material. Operator denied plaintiff further access.

Los Angeles Police Department v. United Reporting Publishing Co

•32 (1999) majority held First Amendment not violated on its face just because statute limited access to arrest records for specific uses, which precluded using information to sell. •Court said the law was not prohibiting the speaker from conveying information that was already in the speaker's possession, but simply a restriction on access to government-held information for which access was regulated.

Telecommunications Act of 1996

•Act includes seven Titles, six of which came from extensive hearings and discussion. The seventh (Title V) came after the committee work or from floor debate—known as the Communications Decency Act of 1996 (CDA). •Focused on increased competition to assure communications served the public interest. •Reflected belief that perhaps Congress was wrong in concluding earlier that cable and telephone companies were natural monopolies. •Allowed phone companies, wireless companies, and even electric companies to offer the same services as cable companies. •Rescinded earlier prohibition against broadcast networks owning cable systems.

FCC Television Duopoly Rule

•Adopted in its original form in 1941. Also known as the "local television rule" it limits common ownership of television stations serving the same geographic region. •The same entity can own or control two television stations in the same television market IF (1) the overlap of the stations' signal is limited and (2) the joint control does not include two of the four most widely watched stations within the market. •But FCC may make exceptions to the "top four" prohibition on a case-by-case basis, depending on the Designated Market Area "DMA".

Comcast v. FCC

•After FCC ordered Comcast to stop blocking BitTorrent, a popular P2P file sharing service, the federal circuit court ruled the FCC did not have jurisdiction to regulate Comcast's Internet management practices.

1992 Must-Carry Rules

•Allowed TV stations to choose between must-carry status with the local cable system or to negotiate with cable operator on terms for retransmitting. •This forced cable operators to carry local stations, even if the operator didn't want to. Example: If a cable system has 100 channels and 15 must be set aside for locals, the system is unable to carry as many cable networks as it might want. •Are there First Amendment implications for this? After all, operators don't originate most programming, they just show it.

City of Los Angeles v. Preferred Communications, 476 U.S. 488 (1986)

•Facts: City refused to grant another cable franchise because City wanted monopoly service. Lower court dismissed a challenge to that prohibition for failure to state a claim. •Issue: Can city orchestrate a monopoly? •Held: Applicant seeks to communicate messages on a wide variety of topics and in a wide variety of formats, so when speech and city's conduct are joined, First Amendment values must be balanced against competing societal interests. Since city made factual assertions to justify its cable franchising decisions that applicant disputes, there must be a fuller development on those issues.

Radio Act of 1912

•responded to the United States ratifying the first international radio treaty. It also fixed shortcomings in the 1910 Act identified after the Titanic sank. Most importantly, it also allowed the Secretary of Commerce to award licenses for radio stations to whoever applied and assign frequencies.

Must-carry rules

FCC regulations that require cable systems to carry all local television stations within the system's area of coverage

Chevron Doctrine

The general rule that federal courts should defer to agency rules that are based on reasonable interpretations of ambiguous statutes

Embarrassing Private Facts

The publication of private information that would be highly offensive to a reasonable person and is not a matter of legitimate public concern

Appropriation

The use of a person's name, likeness or image without permission for commercial gain

information service

a single integrated service, rather than telecommunications service or cable service. FCC said cable service is interstate because Internet data crosses state borders. FCC said state regulators had no jurisdiction to regulate cable modems.

DTV/HDTV

digital television/high definition television; using digital technology to provide image area more like movie rather than television.

Speech Act of 2010

protects ISPs from foreign defamation rulings unless foreign judgment is consistent with the Communication Decency Act.

Communications Act of 1934

the far-reaching act that established the Federal Communications Commission (FCC) and the federal regulatory structure for U.S. broadcasting

Intrusion

the invasion of a person's solitude either physically or by use of technological devices

False Light

widespread publication of facts that place a plaintiff in a false light that is highly offensive to a reasonable person

Kansas Open Records ActK.S.A. 45-215 et seq.

•"(a) It is declared to be the public policy of the state that public records shall be open for inspection by any person unless otherwise provided by this act, and this act shall be liberally construed and applied to promote such policy." •"(b) Nothing in this act shall be construed to require the retention of a public record nor to authorize the discard of a public record." •Policy statements in statutes provide powerful ammunition to those needing to interpret the statute when the express language does not provide the answer to a question. •

Broadcast law is different than press/speech law

•"A broadcaster seeks and is granted the free and exclusive use of a limited and valuable part of the public domain; when he accepts that franchise it is burdened by enforceable public obligations. A newspaper can be operated at the whim or caprice of its owners; a broadcast station cannot." Office of Communication of United Church of Christ v. F.C.C., 359 F.2d 994, 1003 (D.C. Cir. 1966).

Public Access Channels

•"PEG" Channels—cable television channels reserved by law or franchise agreement for public, educational, and government access. •In the early days, cable operators promised PEG access to win franchise agreements from cities and counties. •By 1969, FCC encouraged cable operators to offer PEG access. •In 1972, FCC required PEG access (plus equipment), but the Supreme Court struck down that requirement. See FCC v. Midwest Video Corp., 440 U.S. 689 (1979) (Midwest Video II). •Cable Communication Policy Act of 1984 gave franchising authorities right to negotiate with cable operators to have PEG channels. And it permitted these agreements to prohibit obscene or other material unprotected by the Constitution on PEG channels. •Cable Television Consumer Protection and Competition Act of 1992 allowed operators to prohibit obscene or sexually explicit content or material soliciting or promoting unlawful content on PEG channels. Struck down by Denver Area Educ. Telecomm Consortium, Inc. v. FCC, 518 U.S. 727 (1996). •

Fed. Radio Comm'n v. Nelson Bros.

•(1933) interpreted the 1927 law to give federal government exclusive jurisdiction over broadcast regulation. Noted Congress' authority under Commerce Clause to regulate interstate commerce; limited judicial authority to overrule. Commission had authority to take license away, even from a licensee doing a good job, if giving license to another would do a better job in the Commission's view, so long as not arbitrary or capricious.

DBS

•direct broadcast satellites; operating in synchronized orbits to create a stable broadcast coverage area for transmission of messages and programming to receiving dishes.

How many different radio stations can one individual or company own in a given local market?

•Answer: It depends on the number of radio stations in the market: •In markets with up to 14 radio station, a license may have no more than five radio operations, no more than three of which may be AM or FM stations; and no single licensee may control more than half of the total radio stations in the market. •In markets with 15 to 29 radio stations, one owner may control up to six radio stations, but not more than four AM or four FM stations. •In markets with 30 to 45 radio stations, one owner may control up to seven radio stations, but no more than four AM or four FM stations. •In markets with 45 or more radio stations, one owner may control up to eight radio stations, but no more than five AM or five FM stations.

Public record defined:

•Any recorded information, regardless of form, characteristics, or location, which is made, maintained or kept by or is in the possession of: •Any public agency •Any officer or employee of a public agency pursuant to the officer's or employee's official duties and which is related to the functions, activities, programs or operations of any public agency •Includes written records, photographs, computer data, and email K.S.A. 2018 Supp. 45-217(g)

FCC back and forth

•Communications Act of 1934 directed FCC to serve the public interest and foster diversity. But clearly Congress did not envision cable when adopting the Act. •In 1958, FCC decided it had no jurisdiction over cable. It said its authority was limited to radio, broadcast television, and other technologies using electromagnetic spectrum and common carriers (like phone companies). •In 1962, FCC changed its mind and said it was required to regulate cable because it involves interstate communication by wire and could harm efficient television service, especially if viewers switched from local stations to those imported by cable from elsewhere. •FCC determined distant signal importation into local stations' service area was "too substantial to be dismissed." •FCC promulgated two rules in areas of microwave CATV: (1) CATV required to transmit any station into whose service area they brought competing signals; and (2) CATV prohibited from duplicating programs on local stations for 15 days before or after local broadcast. •

Sources of Law for access to government

•Constitutions (federal and state) •Common law •Statutes (federal and state) •Administrative regulations implementing statutes authorizing (or closing ) access

Why FCC regulates media ownership:

•Diversity of viewpoints reflected in available media content with a variety of perspectives. •Diversity of programming, as indicated by the variety of available formats and content. •Outlet diversity to ensure presence of multiple independently owned media outlets with a geographic market. •Minority and female ownership of broadcast outlets.

What is not a public record?

•Does not include: • Records which are owned by a private person or entity and are not related to functions, activities, programs or operations funded by public funds •Private person - if someone is an officer or employee of a public agency and is acting pursuant to their official duties, they are not a private person •Records made, maintained or kept by an individual who is a member of the legislature or of the governing body of any political or taxing subdivision of the state •Records not in existence at time of request because an agency is not required to create records in order to fulfill a request K.S.A. 2018 Supp. 45-217(9)

Electronic Freedom of Information Act of 19965 U.S.C. § 552 (1996)

•EFOIA enacted to address problems with agencies converting to computerized record-keeping. The claim was digital formatting made production too expensive or unwieldy. •Requires agencies to make regulations, opinions, policy statements, and similar information available on-line, on CD-ROM or computer disc. •Requires requested information to be produced as requested •EFOIA has expedited response times for life or physical safety and for those disseminating information to inform the public about federal government activity. Expedited defined as 10 days.

Cross-ownership

•FCC rules and statutory provisions aimed to protect diversity of ownership and content by reducing ownership consolidation.

U.S. Telecommunications Assoc. v. FCC

•Facts: After the Verizon loss, in 2015 the Obama-era FCC issued a landmark network neutrality ruling ("Open Internet Order"). •First, it reclassified broadband Internet access as a "telecommunications service," as defined by the 1996 Act, rather than as an "information service." •Second, the new rules applied equally to wireline and wireless broadband providers. •Third, it imposed three restrictions: (1) no blocking of lawful content, applications, or services; (2) no throttling—reducing speed or quality; and (3) no paid prioritization. •Fourth, it required disclosure of network management and pricing practices. •Fifth, FCC said it would not enforce Title II telecommunications common-carrier regulations, which might have required open access to competing ISPs and would not enforce common-carrier pricing regulations. •Issue: Could FCC reclassify broadband internet access as a telecommunications service? •Held: Yes. •Rationale: Proper for FCC to consider the end user's perspective when classifying a service; and it was reasonable for FCC to assert that end users consider Internet access as a standalone service that "transmits messages unadulterated by computer processing."

Leathers v. Medlock, 499 U.S. 439 (1991)

•Facts: Arkansas imposed sales tax on cable television and satellite services, but exempted print media from the same tax. •Issue: Is that okay under the First Amendment and Equal Protection Clause? •Held: Yes if it is a generally applicable tax such as this one, which taxes all tangible personal property and specified services. •Rationale: Although cable television, which provides news, information, and entertainment to its subscribers, is engaged in "speech" and is part of the "press" in much of its operation, the fact it is taxed differently from other media does not by itself raise First Amendment concerns. •This is not Grosjean because the tax does not single out the press and threaten it as a "watchdog of government activity." •Finally, tax is not content based. Nothing in its language refers to content of mass media communications, and the record contains no evidence the programming cable television offers subscribers differs systematically in its message from that communicated by satellite broadcast programming, newspapers, or magazines.

Leased-access channels

•provided by cable systems for commercial lease, which cable operators can use for programming when not leased.

Wireless Ship Act of 1910

•required large ships to have wireless equipment and radio operators on board. Also made it illegal not to transmit or answer wireless transmissions from ships.

FCC v. Pacifica Foundation, 438 U.S. 726 (1978)

•Facts: Comedian George Carlin had a routine called "Filthy Words" with indecent, but not obscene, words. A Pacifica Foundation radio station broadcast the routine during the day. A father complained that his son had heard it. FCC sent a reprimand to Pacifica for violating its rules against broadcasting indecent content. Station challenged the reprimand. •Issue: Can FCC control indecency in broadcasting? •Holding: Yes; even though content was not obscene. •Rationale: FCC can regulate it because FCC was responsible for protecting children from corrupting forms of speech and keeping it from entering private homes when their residents do not want it. FCC could regulate the hours when such content could be broadcast, limiting it to times when children were unlikely to be exposed. FCC was owed deference in defining indecency. This speech is less protected by the First Amendment because broadcast programming is so pervasive.

AT&T Mobility LLC v. Concepion

•Facts: Concepion sued AT&T in contract alleging deceptive advertising over whether their wireless plan included free cell phones because company charged $30.22 sales tax. The claim became a class action. But the wireless plan included a binding arbitration clause, even though the claim arose in California where state law prohibited class action arbitration waivers. AT&T moved to dismiss. •Issue: Does the Federal Arbitration Act of 1925 preempt state law? •Held: Yes. 5-4. Scalia, J. for the majority said federal law preempts this state law. Federal law favored arbitration and class actions interfere with fundamental attributes of arbitration. Case dismissed. •Dissent: Breyer, J. Said class arbitrations are appropriate ways to resolve claims that are minor individually but significant in the aggregate.

Turner Broadcasting v. FCC, 512 U.S. 622 (1994) (Turner I)

•Facts: Congress passed Cable Television Consumer Protection and Competition Act of 1992. It required carriage of local broadcast stations on cable systems. •Issue: Do must-carry provisions violate First Amendment? •Held: Maybe. More fact finding required as to whether must-carry rules will actually advance the governmental interests justifying them. •Rationale: (1) First Amendment is implicated because must-carry rules require cable systems to devote a specific portion of their channels to transmission of local commercial and public broadcast stations; •(2) content-neutral restrictions require intermediate scrutiny (as opposed to more relaxed review given to broadcast regulation); •(3) majority said must-carry rules are content neutral because they distinguish between speakers in programming only by the manner of transmission to viewers, not messages carried; and the purposes underlying rule not related to content. •O'Connor partial dissent, joined by Scalia, Ginsburg, and Thomas (in part): •By reserving one-third of cable channels for broadcasters, government ensured in most cases it will be a cable programmer who is dropped and a broadcaster retained. The question presented is whether this choice comports with First Amendment commands. •"[I] cannot avoid the conclusion that [must-carry rules'] preference for broadcasters over cable programmers is justified with reference to content." 512 U.S. at 676. •She notes how the statute justifies the rules, saying: "Preferences for diversity of viewpoints, for localism, for educational programming, and for news and public affairs all make reference to content."

United States v. Southwestern Cable Co., 392 U.S. 157 (1968)

•Facts: FCC made microwave regulations applicable to all CATV and prohibited importation of distant signals into 100 largest TV markets unless already approved. In this case, it concerned importing LA stations into San Diego. •Issue: whether FCC has authority to regulate CATV; and, if so, the power to forbid importation of signal while it pondered what to do. •Held: Yes. This FCC authority is reasonably ancillary to do its job regulating television broadcasting. Agrees CATV significantly impacts local broadcasting.

NBC v. United States/CBS v. United States

•Facts: FCC promulgated content-based regulations designed to control "chain broadcasting," i.e., network broadcasting. Directed rules to participating stations. In 1938, 660 commercial stations existed, 341 of those were affiliated with national networks. Together, NBC and CBS controlled more than 85% of total night-time broadcasting power. •Agency rationale: public interest best served by forbidding stations to contract for affiliation under terms that limited station's programming control. •Court held: FCC's licensing authority under the 1934 Act was proper exercise of congressional power over commerce. Denying station license on public interest ground is not a denial of free speech. "The right to free speech does not include, however, the right to use the facilities of radio without a license." •Court rationale: this is a limited access medium. The "public interest" means the listening public's interest. •Effect: Clears the way for FCC to regulate networks indirectly through station licenses by controlling affiliation agreement terms deemed detrimental to public interest. Served as basis at one time for FCC regulations on fairness doctrine, equal time, and other content-based restrictions.

Capital Cities Cable v. Crisp, 467 U.S. 691 (1984)

•Facts: Local interests tried to influence the competitive atmosphere through local franchise agreements need so CATV could run its wires across town. Oklahoma prohibited advertising alcoholic beverages, which impacted imported CATV programs. •Issue: Does FCC control or state control CATV programming? •Held: FCC. State regulation of retransmission by cable television systems is preempted by federal supremacy. Oklahoma may not require cable operators in that state to delete advertisements for alcoholic beverages in out-of-state signals they retransmit by cable to their subscribers.

Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974

•Facts: state legislative candidate demanded newspaper print his reply to editorials under state "right to reply" law. Florida Supreme Court upheld the statute, saying free speech was enhanced, not abridged, by law furthering "broad societal interest in the free flow of information to the public." •Issue: Is the statute constitutional? •Holding: No; rejecting scarcity arguments used in Red Lion. •Rationale: Print media is different. •"The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials—whether fair or unfair—constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time."

Common carrier

•regulatory category traditionally applied to service providers like telephone services that must provide universal, nondiscriminatory service to all on a first-come-first-served basis and may not control the messages they carry. (This is not broadcast regulation).

Turner Broadcasting v. FCC, 520 U.S. 180 (1997) (Turner II)

•Facts: Must-carry case returns after fact finding and lower court ruling in FCC's favor. •Issue: Did facts support FCC? •Held: Yes (majority). Applying intermediate scrutiny, substantial evidence supported Congress' determination that significant numbers of broadcast stations would be refused carriage on cable systems absent must-carry requirement and this refusal would put those stations at serious risk of financial difficulty, deterioration, and failure. •Rationale: (1) preserving benefits of free, over-the-air local broadcast television, promoting widespread dissemination of information from multiplicity of sources, and promoting fair competition in market for television programming were important governmental interests for First Amendment purposes; (2) must-carry requirement served government's interests in direct and effective way; and (3) provisions did not burden substantially more speech than necessary to further government's substantial interests. •O'Connor dissent, joined by Scalia, Ginsburg, and Thomas: •The majority adopted the wrong analytical framework in the prior case. A principal defense is the statute serves a substantial interest in preserving "diverse," "quality" programming that is "responsive" to the needs of the local community. This is content based regulation requiring strict scrutiny. •Even so, majority misapplies intermediate scrutiny by giving Congress too much deference for its predictive judgments of complex economic questions. •"[W]e have an independent duty to identify with care the Government interests supporting the scheme, to inquire into the reasonableness of congressional findings regarding its necessity, and to examine the fit between its goals and its consequences."--J. O'Connor.

Manhattan Community Access Corporation v. Halleck, 139 S.Ct. 1921 (2019)

•Facts: New York state law requires cable operators to set aside channels for public access. Those PEG channels are managed by cable operators unless the local government does it or designates a private management entity. In New York City, it designated Manhattan Neighborhood Network to operate PEG on Time Warner system. •Facts: A long, bitter dispute raged between the litigants. Halleck produced a film critical of MNN, which aired the film but later suspended Halleck from MNN services and facilities. Halleck sued claiming violation of First Amendment. •Issue: Is what MNN did state action? •Held: 5-4. Kavanaugh for majority. Free Speech Clause of First Amendment constrains government actors and protects private actors. MNN is a private actor even though it manages a public access channel. •Dissent: Sotomayor: "This is a case about an organization appointed by the government to administer a constitutional public forum."

State ex rel. Stephan v. Harder, 230 Kan. 573 (1982)

•Facts: State Medicaid program was required to maintain records of publicly funded abortions back when that was allowed. The records contained the provider names and payments, which was what was requested. But same record contained patient's name, which by law was confidential. Information also maintained on computer tapes. •Issue #1: Law did not expressly require record custodian to redact confidential information to produce non-confidential information, did the law impliedly impose that duty? •Issue #2: Are the computer tapes public records subject to the law? •Held #1: Yes. •Held #2: Yes.

Stephens v. Van Arsdale, 227 Kan. 676 (1980)

•Facts: Wichita Eagle reporter who regularly gathered information from court records for the newspaper. Court clerk denied him access to court records regarding arrests not resulting in convictions, and records ordered expunged, as provided by state law. •Issue: do the statutes violate federal or state constitutions? •Held: No. The right of the press or any other person to access court records is not a right that falls within the protections afforded by the First and Fourteenth Amendments to the United States Constitution or Section 11 of the Kansas Bill of Rights. It is based in the common law. •Held: The common-law right of access of the public, including the press, to court records is not absolute. The decision as to access to court records is one left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case. •Held: The legislature may provide restrictions on public access to official court records in appropriate circumstances, and the courts will enforce those restrictions if they are reasonable and promote some legitimate public interest.

State v. Great Plains of Kiowa County, Inc., 308 Kan. 950 (2018)

•Facts: county commission established a hospital board to operate a county hospital. That board contracted with a private entity to manage the county hospital. •Issue: does the managing entity serve as an instrumentality of the county government? •Held: Yes. And an instrumentality of a county government is a public agency under K.S.A. 45-217(f)(1). •Rationale: by contract, entity manages hospital for "the benefit of the community"; entity can request and does receive ad valorem (property) tax revenue. •"Instrumentality" defined as "a thing used to achieve an end or purpose, or a means or agency through which a function of another entity is accomplished."

Red Lion Broadcasting v. Federal Communications Commission,395 U.S. 367 (1969)

•Facts: radio station broadcast criticisms about a book by Fred J. Cook, claiming Cook had been fired by the New York World Telegram for making false charges against city officials, had worked for a Communist-affiliated magazine, had defended Alger Hiss, and had attacked F.B.I. Director J. Edgar Hoover and the C.I.A. Said book was written "to smear and destroy Barry Goldwater." Cook requested free air time to respond under the FCC's Fairness Doctrine. Station declined. FCC found violation. •Issue: Whether Fairness Doctrine and its Personal Attack Rule are constitutional under the First Amendment. •Holding: Yes. "Although broadcasting is clearly a medium affected by a First Amendment interest, . . . differences in the characteristics of new media justify differences in the First Amendment standards applied to them." ••"It is the purpose of the First Amendment to preserve an uninhibited market-place of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by that government itself or a private licensee. •"It is "the right of the viewers and listeners, not the right of the broadcaster, which is paramount." •Court upheld the FCC's right to impose the fairness requirement, but did not impose a duty on it to do so.

Licensing

•a governmental policy under which express permission must be granted before material can be published or broadcast.

Network nonduplication rules

•allows television network affiliates to require cable system black outs of network programming.

Children's Online Privacy Protection Act of 1998

•attempts to protect children's experience on the Internet, particularly concerning information gathering.

Federal Freedom of Information Act5 U.S.C. § 552 (1966)

•Federal law operates in much the same way as state public record laws. It requires federal government agencies to make their records available for inspection and copying unless records fall into one of nine categories. •FOIA does not apply to Congress, the courts, or the president's staff. •Some records are required to be published; other agency records must be requested. •Audio tapes and computer disks, as well as written materials, are agency records. •If a record must be requested, it must be "reasonably described." •Agencies can charge reasonable search and copying fees; but agencies can waive fees for educational, non-commercial scientific institutions, or for news media if disclosure will "contribute significantly to public understanding" of government operations or activities. But to get the waiver, you have to explain why you want the information. The law does not otherwise require that disclosure except if you want access for free. •FOIA requires a quick response, i.e., substantive compliance. This means either the record's production or specific grounds for denial. But some agencies are really backed up, so it can still take time. •If request is refused, requester can appeal to the agency head, and then to federal district court. •The agency bears the burden to justify denial. Court may award attorney fees if requester "substantially prevails." •There are nine exceptions: [set out on pp. 345-348]. They have complexities to consider when making FOIA requests.

Cable Television Consumer Protection and Competition Act of 1992

•Gave local TV broadcasters the choice to require cable systems to carry their signal (must-carry) or to insist on compensation for being carried (retransmission consent). •Gave locals authority over the basic service tier for local broadcast and public access channels; while FCC regulated the cable tier. •Regulated rates charged for many cable services. •Required FCC to adopt rules allowing competitors to have access to programming carried by cable.

Communication Decency Act of 1996

•ISPs are not treated as a publisher or speaker for defamation purposes. This protection may not apply if the ISP is aware of the defamatory nature.

When you are requesting something:

•Identify the public agency maintaining the record •Review that agency's website (if it has one) for information relevant to your inquiry, or even records uploaded to the website. •Distinguish between information you think you need and records required to be kept and maintained by law •If you want information, contact the public information officer •If you want a record, submit a written KORA request to the Freedom of Information Officer required by law to be designated to assist with KORA requests •Draft any written communication with the public agency so your request is clear (whether you are asking for information vs. records) • •

Redaction

•If a record contains material that is not subject to disclosure, the agency "shall separate or delete such material" and make the record available •Public agency can charge for staff time to redact K.S.A. 2018 Supp. 45-221(d)

Mozilla Corp. v. FCC

•In October, a three-judge panel upheld much of the new FCC order. Two big questions: •(1) Did FCC have sufficient reason to change broadband's classification so soon after adopting the 2015 rules? •(2) Does FCC have power to preempt states? •Held: The court agreed the FCC acted reasonably to reclassify broadband internet by switching it back to an "information service." •Held: Importantly, the court vacated portion of order barring state or local efforts to adopt their own net neutrality laws. ••Unanimous Rationale: The FCC's broad authority to reasonably classify various services into appropriate statutory categories identified in the 1996 Act was established in the US Supreme Court's 2005 Brand-X case and it is binding authority on the circuit court. FCC acted reasonably. • Unanimous Rationale: Even though FCC was switching back and forth between classifications, both times it acted reasonably. •Two judges on preemption: "At bottom, the Commission lacked the legal authority to categorically abolish all fifty States' statutorily conferred authority to regulate intrastate communications. And because no particular state law is at issue in this case and the Commission makes no provision-specific arguments, it would be wholly premature to pass on the preemptive effect..." (Emphasis added.) 940 F.3d at 86.

The Internet Evolution

•In the beginning, you picked your internet service provider. •You accessed your ISP either by using a telephone line and dialing in, or through a cable modem over a coaxial cable from a cable company. •You had blistering speeds of 56k. •As demand skyrocketed, many called for open (or equal access) to transmission lines. As governments got involved, courts generally distinguished their analysis between (1) Internet content and services like email, i.e., "information services"; and (2) "transmission services" between the ISP and its subscriber, i.e., telecommunications service. •By 2002, FCC decided cable modem services would be classified as an "information service," i.e., a single integrated service, rather than telecommunications service or cable service. FCC said cable service is interstate because Internet data crosses state borders. FCC said state regulators had no jurisdiction to regulate cable modems. • This approach was determined to be reasonable. Nat'l Cable and Telecomm. Ass'n v. Brand X Internet Services, 545 U.S. 967 (2005).

FCC Consumers Guide to Indecent Broadcasts

•It is a violation of federal law to air obscene programming at any time. •It is a violation of federal law to air indecent programming or profane language during certain hours. •FCC may revoke a station license, impose a monetary forfeiture, or issue a warning if a station airs obscene, indecent, or profane material. •"Obscene material" test: (1) an average person, applying contemporary community standards, must find the material, as a whole appeals to the prurient interest; (2) must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and (3) taken as a whole, the material must lack serious literary, artistic, political or scientific value. •"Broadcast indecency" defined as "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities." •Indecent programming contains patently offensive sexual or excretory material that does not rise to the level of obscenity. •FCC rule for both television and radio prohibits indecent broadcasts aired between 6 a.m. and 10 p.m. •Profane broadcast restrictions also during those hours, defined as "language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.

CATV

•community antenna television; early name for cable; reflects perception that cable was a regional service expanding broadcast television's reach.

Cable: evolving concerns

•Originally, cable seen as a boom to the broadcast industry because it expanded a licensee's coverage. •Cable first regulated because it came to be perceived as a threat to over-the-air broadcasting (local television) •Next, the concern turned to monopoly power because just one cable operator served the local market •Today, regulators try to promote competition between cable, satellite, telephone, broadcast, and Internet with the goal being to provide consumers adequate choices for telephone, television, and Internet. •Always remember, cable operators must negotiate franchise agreements with local governments for the right to run cable on public right-of-way and over or under city streets. This means there are both federal and local regulations impacting operations.

What is not a public agency?

•Private companies solely because they receive payment from public funds in exchange for property, goods or services •Municipal or state judge/justice K.S.A. 2018 Supp. 45-217(f)(2)

Allowable fees and charges

•Public agency may only recover actual costs to provide the requested records •These costs include staff time to retrieve, review, and redact information from a record •Fees may be estimated and collected before the records are provided K.S.A. 45-21 B(f) and K.S.A. 2018 Supp. 45-219

Limitations on requester

•Requester may not remove the actual public record without the written consent of the custodian •Public agency not required to make copies of radio or recording tapes or discs, video tapes or films, pictures, slides, graphics, or illustrations unless shown at a public meeting •Copyrighted materials may not be reproduced without permission from the copyright holder, but must be available for viewing or listening.

Must-Carry First Amendment questions:

•The Act creates two classes of speakers: •(1) it tells cable operators which programmers they must carry, and keeps those operators from carrying others they might prefer. Selecting which speech to retransmit is no less communication than creating speech in the first place; and •(2) It deprives a class of video programmers (those who operate cable channels rather than broadcast) of access to over one-third of an entire medium. Programmers must compete only for those channels not set aside. •It is normally not within government's power to decide who may speak and who may not, at least on private property or traditional public forums.

Broadcast rules odds and ends

•The Broadcast Hoax Rule: FCC enacted in 1992 in response to a handful of radio broadcasts of false information that caused some panic among the public and/or resulted in law enforcement responding to the false reports. •Fake News beware: FCC states that broadcasters may not "intentionally distort the news" because "rigging or slanting the news is a most heinous act against the public interest."

Responding to the request

•The request must be "acted upon" as soon as possible but not later than the end of the 3rd business day following date request is received. K.S.A. 45-218(d) •There are three acceptable responses: 1. The record is provided (in the form requested, if possible) 2. The request is under review and the records if permitted, will follow 3. The request is denied, with a detailed explanation for the denial

What is a public agency?

•The state •Any political or taxing subdivision of the state, or any office, agency or instrumentality thereof, or •Any other entity receiving or expending or supported in whole or in part by public funds appropriated by the state or political/taxing subdivision •"Instrumentality" - not defined in KORA; if created by a covered entity or the group has become an extension of a covered entity, most likely covered K.S.A. 2018 Supp. 45-217(f)(1)

Mandatory closure

•There are records that are required to be closed by federal or state statutes that are not found in KORA •KORA will look to other statutes first. K.S.A. 2018 Supp. 45-221 (a)(1). The Kansas Revisor of Statutes has identified about 400 state laws that include provisions to close records. •Records custodian must be familiar with those records and what must be separated into the open and closed portions of a record

Cable Communications Policy Act of 1984

•Tried to distinguish areas of responsibility between local and federal governmental entities. •Freed cable operators to determine prices to be charged subscribers •Limited the fees local franchising authorities could extract from operators •Prevented franchising authorities from arbitrarily refusing to renew a cable operator's franchise •Forced cable systems to provide service to their entire franchise areas instead of ignoring low-income neighborhoods

Requester's Rights

•Unless closed by law, the public has the right to review all public records •Any person may make abstracts or request copies of records •If copies cannot be made where the record is located, arrangements must be made to allow copying •If portions of a record are closed, the remainder must be made available to the requester

FCC Ownership Rules

•With its broadcast media ownership rules, the FCC seeks to promote localism and competition by restricting the number of media outlets a single entity can own or control within a geographic market. •In the case of broadcast television stations, this restriction is nationwide. •Two rules are particularly controversial: (1) a national media ownership rule prohibiting any entity from owning commercial television stations reaching more than 39% of U.S. households nationwide; and (2) its "UHF discount rule" that reduces by half the reach of a station broadcasting in ultra-high frequency when applying the national media ownership rule. Retaining that second rule would mean a single entity could potentially reach 78% of households, even with the 39% cap. •Note: The 39% television cap is by federal law. The Consolidated Appropriations Act, 2004 (P.L. 108-199).

Network Neutrality Status

•With the shift to a new Republican FCC majority after Donald Trump's election, FCC voted in December 2017 to reclassify broadband Internet service yet again, returning it to an information service; and repealed the network neutrality rules. The repeal of the 2015 order took effect June 11, 2018. ("Restoring Internet Freedom Order"). FCC touted these benefits: •(1) Consumer Protection: Order restored Federal Trade Commission authority to police and take action against ISPs for anticompetitive, or unfair and deceptive practices. In 2015, FCC stripped FTC jurisdiction over ISPs •(2) Transparency: Order required ISPs to disclose their network management practices to "discourage harmful practices and help regulators target any problematic conduct." •(3) Removing unnecessary regulations: FCC claimed 2015 regulations stymied incentive to invest in high-speed networks. •

Kansas Constitution

•§ 10. Trial; defense of accused. In all prosecutions, the accused shall be allowed to appear and defend in person, or by counsel; to demand the nature and cause of the accusation against him; to meet the witness face to face, and to have compulsory process to compel the attendance of the witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed. No person shall be a witness against himself, or be twice put in jeopardy for the same offense. •§ 11. Liberty of press and speech; libel. The liberty of the press shall be inviolate; and all persons may freely speak, write or publish their sentiments on all subjects, being responsible for the abuse of such rights; and in all civil or criminal actions for libel, the truth may be given in evidence to the jury, and if it shall appear that the alleged libelous matter was published for justifiable ends, the accused party shall be acquitted.