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Re: [dvd-discuss] ClearChannel Plays It Safe
- To: dvd-discuss(at)cyber.law.harvard.edu
- Subject: Re: [dvd-discuss] ClearChannel Plays It Safe
- From: Bryan Taylor <bryan_w_taylor(at)yahoo.com>
- Date: Sun, 23 Sep 2001 22:12:52 -0700 (PDT)
- In-Reply-To: <F56VEm0Gcr85pLBwg9M00005569@hotmail.com>
- Reply-To: dvd-discuss(at)cyber.law.harvard.edu
- Sender: owner-dvd-discuss(at)cyber.law.harvard.edu
--- Harold Eaton <email@example.com> wrote:
> >The full extent of the public service requirement I've been able to find is
> >"Fairness Doctrine" which says that news coverage has to present opposing
> >viewpoints and the requirement to play political ads. The Supreme Court
> >decision I cited before makes it clear that this public service relies on,
> >rather than opposes, the exercising editiorial discretion.
> From the communications act of 1934:
> § 303. Powers and duties of Commission
> Except as otherwise provided in this chapter, the Commission from time to
> time, as public convenience, interest, or necessity requires, shall ...
> (g) Study new uses for radio, provide for experimental uses of frequencies,
> and generally encourage the larger and more effective use of radio IN THE
> PUBLIC INTEREST;
I already agreed that, unlike other media, broadcasting has a public interest
requirement. The only question is what actions actually satisfy it.
> I argue that this has a bit broader meaning than you do. Sort of
> like "fair use" has a broad meaning; Since you enjoy the narrow
> requirements of public interest, I wonder why you don't equally
> like the new shruken "fair use" that congress has given us for
> digital copyrights.
Because fair use is the balancing of copyright vs first amendment rights, it
isn't simply a policy decision. Broadcasting's public interest requirements are
simply a policy decision.
> Water rights like my example could never be granted since water can mean
> life or death. Basically the reason that water rights aren't always
> conveyed with the land is precisely because everyone (except perhaps you)
> can easily see that there is a PUBLIC INTEREST in equitable distribution of
I agree completely that there is a public interest in the equitable
distribution of water. That interest is completely achieved by water rights
being treated as property in a free market system. Anti-trust laws are adequate
protection against the exceedingly remote possibility of one company getting a
> But since you lack the imagination to see how a damn can be used to
> re-route a river so that no significant water flows within 100 miles of you,
> and how that would be unreasonable, let me just attempt one more pitiful
> with water: Laws prohibiting reception of RF energy in your own home
> are analogous to water rights being granted in such a way that
> for you to collect rain from your roof (or even open your mouth to
> the sky) would be illegally usurping someone else's
> ownership rights in that water, however it got there. Would you be ok with
> that too?
First, there is no right to have the river flow in your direction, but second,
if you want to insist that there is a massive government conspiracy to reroute
the rivers you could at least provide an example.
You have totally lost me with talk about banning rainwater gathering. No one
owns the sky, so if water falls and you gather it, it's your water. Please,
don't come up with some crazy scenario where the government grants Microsoft
exclusive use of the sky and ask me to justify it.
> Strange that there used to be limitations on foreign ownership of
> radio and television licenses, your modern view is taking hold now.
> Imagine if the Taliban owned 97% of all radio and television stations
> in this country. No reason not to want that huh! Free Markets can
> do no wrong, after all.
So you are arguing for massive government intervention in broadcasting so we
can avoid having radio and TV controlled by the Taliban. I think the Taliban
illustrates that they fastest way to tyranny is to give the government broad
control of the broadcasting channels. After all, I'm absolutely positive that
the Taliban consider their broadcasts 100% "public service". Those that
disagree get a free trip to the soccer stadium.
I hope you have better arguments than these preposterous scenarios.
> Indeed. But remember that power corrupts and absolute power
> corrupts absolutely. That says something about the decision makers of very
> large corporations.
I don't consider being successful at trade to be "power". There is no company
out there that can force you to buy its services. If you don't like what
broadcasters offer, they are absolutely powerless to make you listen.
> > [...] I recognize that here, I'm advocating a "should be" rather than an
> "as is". [...]
> From the communications act of 1934:
You cannot quote the law to justify a "should be" argument. I already said I
understand how the FCC operates. I also said I blame this method of operation
for the filling of the airwaves with uniform drivel.
Your quote says that broadcasting is licenced, not *permanently* owned. But the
licence is transferable (Clear Channel is one of two major companies buying
them in large quantities), and a whole industry called "advertising" exists to
sell small scale use of the broadcasting right.
> So there you go, a rather more limited right than a propery right.
> Come to think of it, it's a bit like Copyrights - there origins were
> theoretically designed to balance interests between those with the monopoly
> and those of the public, but today it's not so well balanced in either case.
The crucial difference is that the requirement to balance is Consitutional in
the case of Copyright. It's not in the case of broadcasting.
I'm just curious what kind of programming content would satisfy your desire to
have "in the public public interest" programming. I really don't think the
public would be too happy about having CSPAN on every channel. Of course, CSPAN
is available on cable, which isn't regulated by the FCC like broadcast. Hmm....
The original argument is about ClearChannel modifying it's playlist. Virtually
every radio stations has had playlists for decades, and this mundane exercise
of editiorial discretion is the foundation of broadcasting. No matter what kind
of twisted public service theory you come up with, I will never agree that
there is some kind of public interest obligation to play the song "99 Red
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