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Creative Voices 1Q 2008 Newsletter 2008-04-16 """"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" April 16, 2008 Contents:
* Supreme Court Takes Up Critical Indecency Case
=============================================================== Last June, the U.S. Second Circuit Court of Appeals threw out many of the Federal Communications Commission’s “indecency” decisions, holding they were “arbitrary and capricious” and contrary to law. This was a great victory for Creative Voices, which was an intervening party in this lawsuit brought by FOX and the other broadcast networks. But more important, it was a great victory for the American public. Polls consistently show that the vast majority of American citizens do not want Big Brother to control what they – or their kids -- choose to watch on television. Indeed, the Thomas Jefferson Center for the Protection of Free Expression recently awarded, for only the second time in its history, a “Lifetime Muzzle Award” to the FCC, saying the Commission topped its list of the nation’s most “ridiculous and egregious censors” because of its “inconsistent and unpredictable standards for determining what constitutes ‘indecent’ broadcasting” that have caused a “profound chilling effect.” The U.S. Supreme Court has now agreed to hear the case, likely next fall. We look forward to participating in this critical free speech case on behalf of creative media artists and the general public, educating the Supreme Court justices about the huge “chilling effect” caused by the FCC’s arbitrary decisions, and urging them to uphold the Second Circuit’s well-reasoned and correct decision. In the meantime, the FCC has not rested on its Muzzle. Recently, the Commission ruled that it’s just “common sense” that the buttocks are a “sexual organ” – an observation that raised a few eyebrows around town – and then fined ABC stations over a million dollars for airing five years ago an episode of NYPD Blue that included the brief appearance of actress Charlotte Ross’s rear end. In appealing this five-year-after-the-fact fine, ABC noted that the incident came at the very beginning of the show, just moments after ABC's disclaimer that “this police drama contains adult language and partial nudity”; that the show was accurately rated as not for children, so that if parents had chosen to use their V-Chip, it would’ve been blocked; and, that NYPD Blue had been on the air for over a decade so that its reputation as an adult-oriented drama was well known. But the Commission quickly rejected all appeals, concluding that "the graphic, repeated, pandering, titillating, and shocking nature of the scene’s visual depiction of a woman’s naked buttocks warrant a finding that it is patently offensive under contemporary community standards for the broadcast medium, notwithstanding any artistic or social merit and the presence of a parental advisory and rating.” Yikes! Sounds like Disney-owned ABC was caught airing that word that starts with ‘p’ and rhymes with “corn” and we can’t use because it dumps this newsletter in the spam folder! You can judge for yourself on YouTube, searching “NYPD Blue.” We think it’s not even close to anything that the vast majority of Americans would consider “indecent,” and that it in no way merits the FCC’s wildly exaggerated characterization. This illustrates the extreme danger to free speech and free expression posed by the FCC’s arbitrary, capricious, and unrestrained approach to enforcing its indecency rules. As we told Broadcasting & Cable magazine: We always talk about the gray area and the line between indecency and what's allowable on television. What this decision did was to make this gray area exponentially larger. This scene that they are fining on NYPD Blue was obviously looked at by network standards and practices, who are experts in that area and do their jobs very well. It was allowed through by the lawyers. And yet the FCC decision comes back as though it is [the “p” word that rhymes with “corn” again]… Who knows where the line is now? It is all gray. And if any content is arguably in that huge gray area, then in this time of broadcaster fears of an over-zealous FCC it will likely end up on the air. That’s why the FCC indecency crusade is not only impacting the free speech rights of creative media artists and the American public; it is also impacting their pocketbooks. Cable network TNT recently announced an ambitious plan to produce a full primetime slate of original programming. Said a top Turner exec, “Top showrunners are becoming increasingly frustrated by the content constraints at the broadcast nets, which are getting pummeled with increasingly bigger fines from the FCC in response to vocal complaints from parents groups.” FCC content regulations don’t apply to cable. Unfortunately, broadcast pay scales and minimums for creative media artists also don’t apply to cable, which generally pays far less. The public gets its pocket picked as well, since it will now have to pay its friendly local cable operator to see on a cable network what it perhaps could have once seen for free on over-the-air broadcast television -- before the FCC so broadened its indecency rules, and then so arbitrarily enforced them. At Creative Voices, we continue to make the case for reasonable and restrained broadcast content regulation that is consistent with the First Amendment rights of creative media artists and the American public. We ask you to generously support our work as we take this important case in the U.S. Supreme Court.
=============================================================== At least 19 court challenges have been filed against the FCC’s December decision to further relax media ownership limits and permit even greater consolidation of newspapers, television and radio stations, and cable systems in local markets throughout the nation. Some lawsuits say the FCC went too far, while newspaper and broadcaster groups say the Commission didn’t go far enough. Some have said that if the FCC displeased everyone, then it must have gotten its decision just about right. They couldn’t be more wrong. While framed by its proponents as a careful and cautious “compromise,” the FCC decision is quite the opposite; unless overturned by the courts, as was the FCC’s last attempt to permit more consolidation, the FCC decision will unleash a dangerous new wave of mergers in local markets. Congressional reaction to the FCC decision has been swift and negative. In the Senate, the Commerce Committee will soon vote on a “Resolution of Disapproval” to overturn the FCC decision, sponsored by Sen. Byron Dorgan (D-ND). Meanwhile, House Energy and Commerce leaders Reps. John Dingell (D-MI) and Joe Barton (R-TX) are launching a bipartisan investigation to determine whether the FCC’s business has been conducted in a "fair, open and efficient" manner. But rather than have us preach any more about the dangers of media consolidation and concentration, have a listen to the keynote address that actor Tim Robbins just gave to the annual convention of the National Association of Broadcasters, available here. As Variety reported: The fun started to get uncomfortable when Robbins referred to both the Reagan and Clinton administrations having eased limitations on media ownership -- all to the ‘benefit’ of communities, which then no longer had to listen to diverse, complex opinions or ‘alternative rock.’ Robbins peaked with what he called a three-pronged proposal that broadcasters should adopt in order to eliminate ‘confusing, complex issues’ such as diversity of thought and opinion. ‘First, erase all diversity,’ he said. ‘You only need two opinions. Second, stay focused on sex scandals. We don't want any kind of reporting outside the sound bite. I don't know about you, but show me a drunk starlet getting out of a car with no panties on, and I think the world is a better place. Third, more distraction. The economy sucks? Chaos in Iraq? It is a moral responsibility to distract... In all seriousness, folks,’ Robbins said, dropping the good-natured satirical tone, ‘We're at an abyss as an industry and a country.’ He talked of pervasive cynicism in the country and added that ‘you, as broadcasters, have the power to turn the nation away from cynicism. Or you can hide behind the old adage, '”I'm just a businessman, just providing what the audience wants.”’ While some broadcasters walked out during the speech, many stayed and gave Robbins a standing ovation. Kudos to the NAB for inviting Robbins and hearing him out. One way that media consolidation harms creative media artists is when one arm of a media conglomerate sells at a sweetheart price to another arm of the same conglomerate a production that generates artists’ residuals, royalties, and health and pension payments. Rampant self-dealing among media conglomerates has resulted in numerous high-profile lawsuits by top producers against the studios’ and networks’ “Hollywood Accounting,” often resulting in huge, secret settlements paid to the producers. But, typically, most media artists have no leverage to challenge the practice. That’s why Creative Voices supports the "Fair Market Value" bill, sponsored by Sen. Sheila Kuehl (D-Los Angeles), which recently passed the CA Senate Judiciary Committee and is on its way to the full Senate. It would mandate that the major media conglomerates pay "fair market value" when they are buying and selling to and from themselves on projects that generate revenues for creative media artists. BTW, Kuehl knows the biz well; she played brainy “Zelda Gilroy” on The Many Loves of Dobie Gillis.
=============================================================== Recently, Comcast, the nation’s largest broadband Internet service provider, admitted that it is slowing down and degrading the BitTorrent file sharing service, which is used by Big Media companies like Fox and Time Warner, as well as independent media artists, to deliver video to millions of Americans. BitTorrent competes against Comcast, the nation’s largest cable company, in video distribution, illustrating one reason why we are so concerned over the issue of “Internet Freedom” aka “Network Neutrality.” Will Comcast and other large broadband internet service providers favor the delivery of their own video, and that of their business partners, while slowing down, degrading, or completely preventing access to competing content created by others? With NBC-Universal and Fox unveiling their own Hulu.com film and television delivery service, which is now being used by nearly all the big media conglomerates, this question is more important than ever. Because at the very same time that their own Hulu.com launched, these Big Media companies also announced that they were supporting Comcast and other large broadband ISPs in their multi-million dollar lobbying effort against reasonable rules that would prevent a Comcast kneecapping a BitTorrent, and safeguard the right of consumers to access the Internet websites and services they want. Was this timing a coincidence? We think not. We believe there’s a quiet quid pro quo at work here; that in return for Big Media’s support of their position against Net Neutrality, we will never witness Comcast or any other ISP degrade or block Big Media’s Hulu.com delivery service, as they did to BitTorrent. We believe this is a critical battle against an extremely serious and potent threat to the Internet’s “level playing field.” And if you think we’re Crying Wolf, consider the comments of Neil Berkett, CEO of Virgin Media, the U.K.’s second largest broadband ISP, who recently dismissed network neutrality as "a load of bollocks" and warned that those websites and services not willing to pay Virgin an extra fee for speed would end up in the "bus lanes" of broadband delivery. That will be the demise of America’s future Internet as well, unless we pass reasonable rules to keep it open for all producers and consumers. We applaud FCC Chairman Kevin J. Martin for launching an investigation into the Comcast/BitTorrent case and expressing his view that consumers should not be prevented from accessing the lawful Internet content of their choice. On April 17, the Commission will hold a public hearing at Stanford University to consider these critical issues. If you’re in the Bay Area, please try to attend. It’s important that the Commission hears the views of citizens and media makers concerned about preserving their right to distribute and access the Internet content of their choice. Details on the hearing are here. We also extend kudos and support to Reps. Ed Markey (D-MA) and Chip Pickering (R-MS) for giving a strong bipartisan launch to the House Internet Freedom Preservation Act of 2008. The bill requires the FCC to “guard against unreasonable discriminatory favoritism for, or degradation of, content by network operators based upon its source, ownership, or destination on the Internet.” That seems reasonable, doesn’t it? We think so, too.
============================================================= Our involvement in a case before the U.S. Supreme Court, increasing government threats to free speech, continuing rampant media consolidation and concentration, and threats to an open Internet make this an extremely challenging time for Creative Voices. We greatly appreciate your tax-deductible contribution. Donations can be easily and securely made on our website. Or you can snail mail a check to our address below. Either way, be assured that your contribution will be put to good and careful use. Contributions of $100 or more receive a really cool gift. And see why the press is writing about our Free Speech Store. Where else can you buy a Woman's Top that warns "Do Not Remove Without Permission of the FCC"? Or a "What the FCC Happened to Free Speech" mouse pad and coffee mug? Or a "Murdoch: It's Australian for Monopoly, Mate!" shirt? Wear your support for free speech and media reform on your sleeve! You can reach the store from our website or blog.
We welcome your comments. And we urge you to pass on this newsletter to others who might be interested in learning more about us. Many thanks for your support. Please note our new mailing address below. If you have any questions or comments, please don't hesitate to contact me. Best, Jon
Jonathan Rintels
Center for Creative Voices in Media
(202) 903-4081 (voice) |