Americans rank the DVR [digital video recorders] as the third most indispensable household item (62%), after the washing machine (97%) and the microwave oven (86%) -- Americans rank the DVR as the second most essential household technology item they can't live without (81%), beaten only by the mobile phone (92%) -- 3 out of 4 respondents with partners say that having a DVR makes for a happier home life
When you think about, it is incredible that DVRs only came on the scene in the late 1990s and yet now -- less than a decade later -- they are considered an "indispensable" technology by most people.
This has some important policy implications for debates over content regulation. In a paper I penned last October entitled, "Parental Control Perfection? The Impact of the DVR and VOD Boom on the Debate over TV Content Regulation," I outlined how new video technologies, such as digital video recorders (DVRs) and video on demand (VOD) services, are changing the way households consume media and are helping parents better tailor viewing experiences to their tastes and values. I provided evidence showing the rapid spread of these technologies and discussed how parents are using these tools in their homes. Finally, I argued that these developments will have profound implications for debates over the regulation of video programming. As parents are given the ability to more effectively manage their family's viewing habits and experiences, it will lessen--if not completely undercut--the need for government intervention on their behalf.
If you are interested, I have embedded the paper down below. Today's survey results from NDS make it clear that the process I discuss in my paper is happening at an even fast pace than I originally predicted.
The End of "the American Internet" and the Future of Content Controls
John Markoff had an interesting article in the New York Times this weekend entitled "Internet Traffic Begins to Bypass the U.S.." In the piece, Markoff notes that "The era of the American Internet is ending" since "data is increasingly flowing around the United States," instead of all flowing though our country, as it once did. Markoff focuses on how that "may have intelligence -- and conceivably military -- consequences."
Indeed, it may. But what I also found interesting about this fact is the implications it will have for the future of content regulation. As Harvard's Yochai Benkler told the Times, "This is one of many dimensions on which we'll have to adjust to a reduction in American ability to dictate terms of core interests of ours." Content controls are one way that lawmakers enforce what they perceive to be a country's "core interests." As less and less Internet traffic flows through the U.S., it could become increasingly difficult for American lawmakers to impose their particular vision or morality on the Internet.
An Unnatural Modern Fascination with Murder and Celebrities?
Having covered free speech and media policy issues for many years now, one of the arguments I hear a lot is that we moderns have an unnatural fascination with murder, mayhem, and violence as well as gossip and celebrities. Social critics and proponents of media content regulation often wax nostalgic about the supposed "good ol' days" when all we thought and talked about was enlightened and enriching topics.
It's all complete nonsense. Anyone who has seriously studied our nation's history -- or, for that matter, the history of any country or civilization -- knows that we humans have always been fascinated by the morbid and tales of debauchery, especially when those tales involve public officials or celebrities.
I was reminded of this again today when reading two articles in the Washington Post.
FCC v. Fox Television: All the Supreme Court briefs are in
Lately I've been writing about potentially historic upcoming First Amendment case of FCC v. Fox Television Stations. The Supreme Court will hear the case on Tuesday, November 4th. All the briefs in the case are in and can be found on the ABA website here. But I've pasted the links for all of them below as well. In coming days and weeks I might be highlighting some of the comments from the briefs. [The docket number for the case is 07-582]. The amicus brief I filed with my friends at CDT can be found here, and I wrote about it last week here on the TLF.
The FCC v. Fox case is the indecency case involving the FCC's new policy for "fleeting expletives." I wrote about the Second Circuit Court of Appeals decision here. The full decision is here. The FCC v. Fox case could become the most important First Amendment-related Supreme Court case since FCC v. Pacifica Foundation, which just turned 30 years old last month. Anyway, here are all the briefs in the case, starting with the merit briefs by the lead parties:
Get Ready for Internet Advertising Regulation "for the Children"
Catherine Holahan of Business Weekpoints out that consumer and children's advocacy groups are looking to expand their efforts to regulate fatty and sugary food advertising in the name of "protecting the children":
Having successfully lobbied the government to place limits on junk food ads on TV, they now target marketing to kids via the Web. "While there are some rules for TV, there are no rules when you move online," says Patti Miller, vice-president of children's advocacy group Children Now and a member of the Federal Communications Commission's Task Force on Media & Childhood Obesity. "We don't want to reduce junk food advertising to kids [on TV] and then find that it has just moved to another platform."
And so another classic case study in regulatory creep is born and the Net gets a little more regulated in the process as Uncle Sam becomes our Super Nanny. What's that you say? Parents should take more responsibility for what their kids watch and eat? Silly you. Don't you know that it takes a village to raise a village idiot? Or something like that.
[Reminder: The FCC v. Fox case is the indecency case involving the FCC's new policy for "fleeting expletives." I wrote about the Second Circuit Court of Appeals decision here. The full decision is here. By contrast, the so-called "Janet Jackson case" -- CBS v. FCC -- took place in the Third Circuit Court of Appeals and that court recently handed down a decision that also went against the FCC. I wrote about the Third Circuit's decision here.]
FCC v. Fox case could become the most important First Amendment-related Supreme Court case since FCC v. Pacifica Foundation, which just turned 30 years old last month. Of course, it could be that the Supreme Court simply sticks to the procedural questions regarding whether the FCC moved too far, too fast in reversing it's long-standing policy of restraint regarding "fleeting expletives." That's essentially what the Second Circuit did. On the other hand, the Supremes might reach the substantive First Amendment issues tied up in the Pacifica case. We just won't know for sure until the case is handed down.
Regardless, in the joint CDT-PFF amicus brief filed today, we argue that the FCC has both gone too far procedurally and that "the time is rapidly approaching for this Court to find that broadcast, like the Internet and other means of mass communication, 'is entitled to the highest protection from government intrusion' and that there is no longer a factual 'basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.'" Citing Reno v. ACLU, 521 U.S. at 863, 870."
A more detailed summary of our argument follows below.
In my July essay on "Understanding The True Cost of Video Game Censorship Efforts," I pointed out how outrageous it was that politicians continue to burn money on fruitless regulatory measures that are destined to be struck down as unconstitutional. I argued that the nearly $2 million in legal fees and expenses recovered by the video game industry after winning its legal cases against various governments could have been spent much better by public policy makers:
That $2 million in recovered legal fees could have been plowed into educational efforts to help explain to parents how to use the excellent voluntary ratings systems or console-based parental control tools that are at their disposal. Moreover, that $2 million in recovered industry legal fees does not account for the resources that state and local officials put into these regulatory efforts. So, we are talking about a much greater deadweight loss for society and taxpayers.
Well, that opportunity cost / deadweight loss grew even higher today when the state of California reimbursed the Entertainment Software Association (ESA) $282,794 for attorney's fees after losing a recent legal battle in the case Video Software Dealers Association v. Schwarzenegger. The ESA sent out a press release about the case today that dramatically points out the opportunity cost of such regulation:
The ESA noted that this payment comes at an especially troubling time for the state, calling to mind other pressing budgetary and legislative priorities and issues, including:
* California is currently facing a $15-billion budget gap
* More than 10,000 California state employees were laid off last week in light of the budget crisis
* Governor Schwarzenegger is seeking to cut wages for nearly 200,000 state employees
* The state already cut 10 percent to its Medicaid reimbursement rate and deferred payments to vendors
"Caregivers are not well-served by court battles and legal fees. Rather, they would have been far better off if state officials worked together with our industry to raise awareness about video game ratings and the parental controls available on all new game consoles -- both of which help ensure that the games children play are parent-approved."
Last month I posted a tongue-and-cheek piece thanking policymakers for taking steps to save us from loud TV ads and product placements. The whole thing just strikes me as the height of absurdity; it's a stupid way for regulators to spend their time and it's a complete waste of taxpayer dollars. Backers of such regulations assume that we in the public are little more than ignorant sheep whose minds will be subliminally programmed to want to drink certain colas or drive certain cars just because they saw them in a TV show. Absurd.
The other thing that kills me about this debate is how some people seem to imagine that product placement has somehow come out of nowhere recently and taken over broadcast TV and radio to an unprecedented extent. That's either revisionist history or ignorance of it. The fact is, broadcasting has been filled with product placement for years. Media guru Jack Myers points this out in a good piece on the issue this week:
Those old enough to recall the early days of television news recall that Camel cigarettes and Timex sponsored the NBC News with John Cameron Swayze. On-set signage was prominent. Local radio personalities have always used their relationships with consumers to advance their sponsors' interests.
But it goes way beyond that. For God's sake, has everyone forgotten about the "Texaco Star Theater"? It was the top-rated show of the 1950s, pulling in a stunning 61.6 rating in 1950-51 alone. How did the show begin? Here's how the Wikipedia entry describes it:
On television, continuing a practice long established in radio, Texaco included its brand name in the show title. When the television version launched, Texaco also made sure its employees were featured prominently throughout the hour, usually appearing as smiling "guardian angels" performing good deeds of one or another kind, and a quartet of Texaco singers opened each week's show with the following theme song:
NPR spot on Third Circuit decision in Janet Jackson case
I was on NPR's "On the Media" program this weekend discussing the recent Third Circuit Court of Appeals decision striking down the FCC's fines in the "Janet Jackson case." As I noted in this lengthy analysis of the decision, the court said that the agency's recent efforts to expand the parameters of "indecency" enforcement for broadcast programming went too far, too fast. "[T]he FCC's new policy sanctioning 'fleeting expletives' is arbitrary and capricious under the Administrative Procedure Act for failing to articulate a reasoned basis for its change in policy," the Court held.
"On the Media" host Bob Garfield interviewed me for 5 minutes about the decision and its ramifications. The show can be heard here or you can just read the transcript there. Or you can just listen to it by clicking the button below...
Joint FCC Filing on Internet Filtering Plan for AWS-3 Spectrum
This week I was pleased to join a diverse collection of think tanks and public interest groups in submitting joint comments to the FCC opposing the proposed content filtering mandate that would be part of a future AWS-3 auction. That's the proposed auction that would create a "free" nationwide wireless broadband service. As part of the deal, the company would need to need to take steps to provide a "clean" Internet connection by filtering content. This joint filing points out why that is a bad idea:
* the reach of the filtering mandate is extraordinarily broad, and would attempt to censor content far beyond any content regulation regime that has been previously upheld in the face of constitutional challenge.
* even if the scope of the filtering mandate were more narrowly focused, it would conflict with the First Amendment analysis that the Supreme Court applied to Internet access in the seminal Reno v. ACLU decision.
* even if the Commission were to require filtering on an "opt out" or "opt in" basis, the Constitutional problems would not be avoided. Opt-out filtering would impose an unconstitutional burden on listeners and recipients of Internet communications, and both opt-out and opt-in filtering would violate the First Amendment rights of speakers and other content providers on the Internet. Simply put, the First Amendment does not allow a government mandated "blacklist" of websites to be blocked.
* would also violate the terms and intent of two federal statutes - 47 U.S.C. § 326 (which prohibits the Commission from "interfer[ing] with the right of free speech") and 47 U.S.C. § 230 (which promotes user control over content and limits burdens on service providers).
* would also limit what people could do online using the free AWS-3 service so dramatically that the usefulness of the service would be radically reduced.
* would also certainly lead to legal challenges that would delay the implementation of the proposed access service.
