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Abstract: "Stealth Marketing and Editorial Integrity" is the first article in the legal literature to address the normative implications of covert marketing in mass media. For business, technological, and cultural reasons, advertisers and propagandists are increasingly using editors to pass off promotional messages as editorial content. This integration of sponsorship allows marketers to cut through communications clutter and audience resistance to marketing. In this way, the practices of payola, product placement, and sponsored journalism are proliferating and spreading into newer media forms like blogs and video games. A federal sponsorship disclosure law has proscribed these practices in broadcasting for nearly a century. Despite high profile recent controversies about the practices, the legal literature is devoid of any systematic analysis of the problem that stealth marketing presents or the values that sponsorship disclosure might serve whether in broadcasting or other media. This Article fills that void by providing a normative theory of sponsorship disclosure law informed by the First Amendment, bribery law, and information theory more generally. Drawing on the economic theory of Ronald Coase and the social theory of Juergen Habermas, Professor Goodman identifies the harm of undisclosed sponsorship in media as a degradation of the robust public discourse that is necessary to a democracy and is possible even in a highly commercialized media sphere. The Article concludes with a proposal for revamping and extending sponsorship disclosure law beyond broadcasting in a manner that is technology neutral and sensitive to the evolution of digital technologies.
marketing, advertising, media, disclosure, intellectual property, payola, propaganda, advertising, commercial speech, First Amendment, Coase, Habermas
Abstract: How access to radio frequencies should be controlled and what different control structures might mean for the development of wireless communications has been the subject of intense debate. Legal scholars and economists have proposed radical reformation of the current regime of spectrum regulation, and such reform is being considered at both the FCC and in Congress. The next few years will be critical in shaping the wireless world to come. Despite the importance and timeliness of the debate over spectrum rights, the theoretical literature has not advanced beyond first principles. Many have written, in the tradition of Coase, in favor of exclusive property rights in spectrum. More recently, several scholars have countered that spectrum should be managed as a commons in which transmission rights are broadly shared, subject only to compliance with certain technical protocols. What has received little attention is the question of how spectrum disputes should be resolved the day after the revolution in spectrum management, whatever its character. Little consideration has been given to what legal structures and rules will be necessary, and to what extent even radical change in spectrum management will relieve decisionmakers of the public interest balancing the FCC undertakes today in distributing spectrum entitlements. I consider these questions by first developing a framework for understanding different kinds of interference disputes among wireless operators. Then, focusing on the possibility of fee simple ownership in spectrum, I apply the insights of Calabresi's and Melamed's Cathedral and follow-on literature to the resolution of these interference disputes. I conclude that a nuisance-like common law, as applied to spectrum, will require its own public interest standard. Like the FCC, decisionmakers will have to balance efficiency and fairness goals in the pursuit of a particular kind of communications environment. I show, moreover, that the development of liability standards and nuisance remedies will be difficult and costly. The costs and indeterminacy of dispute resolution could be reduced, however, with the development of a hybrid approach that combines the strengths of regulation and the common law. Such an approach might involve defining categorical nuisances in spectrum and establishing presumptions as to the appropriate entitlements in different kinds of interference disputes. The commons alternative to property rights will not eliminate all this complexity and uncertainty. In the wireless commons, as in the wireless subdivision, the resolution of interference disputes will require choices among various efficiency and fairness goals. Here too, judicious use of the regulatory function will be necessary to implement a mature legal structure for the telecosm to come. Whether a revolution in spectrum management is at hand or still far off, the administration of spectrum rights is changing. These changes should be undertaken with an eye to the private and common property rights of the future, and the efficient and fair resolution of spectrum disputes.
spectrum, property and liability rules, administrative law, FCC, commons, property law, nuisance, administrative law, public interest, wireless, communications law and regulation
Abstract: Media policy debates are today marred by outdated and ultimately unworkable justifications for government intervention in media markets. Both proponents and opponents of such intervention have obscured the appropriate goals of media policy. Moreover, they have paid insufficient attention to the impact of digital media on the marketplace of ideas. This article proposes a new account of media policy goals and offers the first detailed analysis of how new media market dynamics should affect future media policies. Policies that promote greater diversity in video products, whether through regulations or subsidies, serve both reactive and proactive purposes. In its reactive posture, media policy aims to correct what I call narrow market failures. These are failures of media markets to deliver content that small audience segments desire. But media policy must also pursue a proactive agenda by supplementing even well-functioning markets. This proactive thrust responds to broad failures of the market to deliver media content that audiences might not currently desire, but promotes democratic discourse and social solidarity. This article shows how digital networks substantially affect both reactive and proactive media policy objectives. Existing media policies are premised on the mid-twentieth century reality of scarce content and abundant audience attention. But in the digital era, it is attention that is scarce and content that is abundant. Drawing on empirical evidence and theory from several disciplines, I show how this shift changes the narrow market failures to which media policy must respond and undermines past responses to broad market failures. I conclude by applying these theories to media subsidies, arguing that subsidies for a robust public service media are the proper channel for media policy in the digital era from both a First Amendment and practical perspective
Digital media, market failures, communications policy, first amendment, government subsidies
Abstract: It used to be that free speech interests were deemed not particularly relevant or not especially powerful in many areas of communications regulation. Phone companies, for example, were not considered speakers at all. Broadcasters, although speakers, did not have the same First Amendment status as newspaper journalists. The emergence of new communications technologies and the convergence of existing media over the past decade have dramatically increased the salience of First Amendment concerns in communications regulation. As a result, the government is finding it increasingly difficult to achieve traditional regulatory policy objectives - such as promoting competition and diversity in the electronic media - in the face of more stringent First Amendment review. In response to these developments, the government will likely devise new regulatory approaches that steer clear of First Amendment restrictions. This article examines one possible approach: the government's use of speech benefits rather than regulations to promote desired activities in the media marketplace. Specifically, in the 1999 Satellite Home Viewer Improvement Act (SHVIA), Congress fashioned a copyright benefit - a compulsory copyright license that allows DBS operators to retransmit local broadcast stations without charge - in order to induce certain behavior - the carriage of local broadcast stations that a DBS operator might not otherwise provide. Part I of this article begins with a discussion of why the government might choose to "regulate" new media in the long shadow of the First Amendment by attaching conditions to the speech it promotes, rather than by risking classic First Amendment scrutiny of ordinary regulation. Part II reviews the recent subsidized speech cases, identifying a common preoccupation with the question of whether or not government speech subsidies have coerced, rather than simply encouraged, a speaker to communicate in a certain fashion. Against this doctrinal background, Part III discusses the history and structure of SHVIA and why governmentally bestowed copyright benefits may operate as speech subsidies. It concludes that, from the standpoint of the benefited speaker, the government's manipulation of the copyright law just as clearly constitutes a "subsidy" as an outright grant of funds or a tax exemption. Thus, the award of a compulsory copyright license to a satellite carrier ought to be treated like a speech benefit to which strings (i.e. carriage of local broadcast signals) have been attached. Part IV returns to the subsidized speech doctrine and suggests two modifications to allow courts to better assess the communicative impact of laws like SHVIA that are designed to achieve the traditional communications regulatory goal of more diverse speech. First, a coercion theory should take into account the process of compromise between industry and government, as well as among competing industries vying for marketplace advantage, that produced the speech exchange reflected in the law. Second, evaluation of the First Amendment impact of the speech exchange should include a frank consideration of whether or not the exchange is likely to add diversity to the information market.
Satellite Home Viewer Improvement Act, First Amendment, subsidized speech, communications regulation, broadcast regulation, must carry, unconstitutional conditions
Abstract: What many call social media or Web 2.0 applications - podcasts, blogs, and services such as Facebook and Wikipedia - allow individuals to communicate on a massive scale often anonymously or under assumed identities. Businesses are learning to take advantage of these social media to connect with consumers in ways designed to feel authentic and personal. The result is a massive flow of information to individuals, sometimes from their peers, and sometimes from institutions disguised as peers. When the information flow consists of advertising and promotion, it challenges the structure and application of false advertising law, which was designed to manage information in relatively controlled environments where few speakers were capable of mass communication. This essay offers tentative thoughts on how "peer promotions" fit into the structure of federal false advertising law. In the first instance, it is important to set aside peer promotions that are spontaneous commentary on a product with no connection to the brand owner. These communications are not advertising at all, but editorial comment. Increasingly, however, brand owners themselves create "peer" promotions or adopt such communications for marketing purposes. In these cases, there is commercial speech which, depending on its content, may be regulated. It is the gray area between brand control and no control where peer promotions most severely strain the application of advertising law and its efficacy. Where brand owners sponsor peer promotions but conceal their involvement, the resulting communication mixes the commercial speech of the sponsor with the noncommercial speech of the peer. The borders of commercial speech have shifted with each innovation in modern marketing, particularly as advertising has become more image-based and integrated into other forms of media content. Mixed peer-advertiser promotions take the blurring of commercial and noncommercial speech one step further and pose more insistently the central question of advertising law: how do we balance the desirability of regulating for transparent commercial communications with the free speech dangers of regulating at the commercial-expressive interface?
peer-to-peer communications, advertising, new media, social media, Web 2.0, stealth marketing
Abstract: With their edited volume, "Animal Rights: Current Controversies and New Directions," Cass Sunstein and Martha Nussbaum have helped to propel animal rights into the mainstream of legal thought. This review of the book analyzes the various theoretical strains in the growing field of animal law, including utilitarianism, moral rights, and humanism. Discussing the limitations and strengths of each theory, the review then connects these theories to developments in animal law and the program of law reform.
animal rights, animal law, philosophy, jurisprudence
Abstract: Two principal pillars of media policy are communications and copyright law. In each discipline, there are pluralists who seek greater public access to the means of communications (communications policy pluralists) and communicative content (copyright pluralists). Historically, communications policy pluralists have sought government interventions in the marketplace in order to increase access to mass communications. Copyright pluralists, by contrast, have fought against regulatory interventions they argue unduly strengthen the rights of copyright holders to deny access to content. In pursuing these strategies, the pluralists have used First Amendment arguments that are in tension with each other and ultimately unavailing in the courts. These arguments, drawing on the rhetoric of free speech rights and values, shortchange the complexity of free speech interests at stake when the government reallocates speech opportunities. This article argues that only by abandoning traditional First Amendment categories of review will pluralists and courts arrive at an analysis that fairly takes into account speakers' interests in controlling their speech and the public's interests in loosening that control. The article shows how reconciling communications and copyright pluralists' First Amendment positions, and developing a new First Amendment jurisprudence, becomes more important as the pluralist agenda matures to include positions on net neutrality, unlicensed spectrum, and compulsory copyright licenses.
copyright law, communications law, media law, access to the press, media ownership, access rights, First Amendment, Justice Breyer, strict scrutiny, Turner, Eldred
Abstract: The Communications Act requires the FCC to auction rights to use the electromagnetic spectrum so as to recover, for the public, a portion of the value of the public spectrum resource and avoid the unjust enrichment of licensees. This use of the venerable common law doctrine of unjust enrichment is unique in the U.S. Code. Its inclusion in the alien medium of communications law raises intriguing questions about how spectrum access should be valued and how fairness in the distribution of access rights can be achieved. Complaints that there has been unjust enrichment or a spectrum giveaway are common at the FCC. These claims about spectrum equity slow the FCC's efforts to give parties the rights to use old licenses for new purposes. If unlicensed spectrum users come to gain protection from interference, or the right to cause interference, claims about equity will crop up here too. It is both desirable and necessary for policymakers to address these claims with a clearer understanding of spectrum value. This essay examines various meanings and metrics of spectrum equity, highlighting the importance of interference entitlements to the value of spectrum.
spectrum, equity, unjust enrichment, commons, property rights, natural resources
Abstract: This paper argues for continuing public support for public media, but a dramatic transformation of the way that public media is conceived and structured. Specifically, media policy needs to focus more generally on public media, not public broadcasting. Public broadcast subsidies should be redeployed on a platform-neutral basis to support many kinds of media production and distribution. These subsidies should support podcasting as well as radio, citizen journalism as well as conventional journalism, and distributed systems of content creation as well as conventionally produced programming. What is needed is a system that focuses on supporting a wide range of noncommercial programs and services, and that promotes universal access to, and opportunity to engage with, quality media content. This chapter presents ideas for transitioning the system of public broadcasting to a system of digital public media, focusing on television. This transition involves at least three components: (1) restructuring the current system so that funds are diverted from the operation of broadcast facilities; (2) redefining the entities that are entitled to public media funding; and (3) revamping the system of copyright exemptions and licenses so that public media entities have access to content on reasonable terms, can distribute public media content across all platforms, and can make content available for citizen engagement and re-use.
Abstract: This chapter for a book on the future of digital television examines how spectrum policy priorities came to shape today's television broadcast system and the issues that will influence the future of wireless video. As video services come to migrate freely between wired and wireless platforms, and as broadcast television merges with other forms of wireless video, spectrum policy and the public interest values that it reflects will shape the video value chain. These values are often crosscutting and require tradeoffs among such interests as maintaining existing communications services, technical innovation, spectrum efficiency, universal service, media diversity, and competition. What tradeoffs are made, and what they cost, is too frequently hidden from public view.
spectrum policy, media policy, media regulation, telecommunications regulation, video, Internet, wireless, administrative law
Abstract: Last year, the Federal Communications Commission held its largest ever spectrum auction, selling exclusive rights to use coveted wireless frequencies for approximately $20 billion. This turned out to be the largest ever single auction of public property in U.S. history. Aside from its sheer magnitude, the auction of frequencies in the 700 MHz band was notable for the federal government's attempt to use the auction process as a mechanism to value various conflicting public policy goals. For the first time, the FCC set out to ascertain just how much a contested policy goal would cost in foregone auction revenue and vowed to give up the goal if it cost too much. This use of auctions as a heuristic for valuing public interest goals raises interesting questions about the relationship between markets and policy, and between government as a proprietor of public resources and as a regulator of those resources. I argue that it is possible to use auction results to inform the policy process without elevating revenue goals over other public policy objectives. In the 700 MHz auction, however, the FCC misunderstood what information auctions can yield and then failed to design an auction that would supply even that information. Correcting these problems for the spectrum auctions of the future - what may be the last great "land rush" to obtain wireless resources valued at more than $1 trillion - would lead to a more rational, transparent, and equitable communications policy.
spectrum, auctions, telecommunications, wireless, communications policy, public interest, public policy, regulation, administrative law, FCC
Abstract: This policy paper for an Aspen Institute Roundtable on Spectrum Policy identifies obstacles to spectrum efficiency and policy changes that would increase efficiency and sharing of wireless resources.
spectrum policy, telecommunications, wireless, administrative law
Abstract: This comment argues against revival of the Fairness Doctrine for broadcast television and other media.
First Amendment, Fairness Doctrine, broadcast regulation, media policy, Internet, media diversity
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