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Digital Crossroads is a weekly radio show, now in its 3rd year, new every Friday.

Today, a look back at election day from a unique perspective. Marge Heins is a great writer and veteran attorney with real experience at the Supreme Court. Her book Not in Front of the Children is required reading if you want to know the modern history of American broadcast censorship. I spoke with her on the phone Wednesday November 5th, the day after the Supreme Court heard oral arguments in the FCC vs. Fox “fleeting expletives” case.

Hear her expert opinion about what the Supremes will decide and how it will affect free speech over the airwaves in America. Then stay tuned for a look at what we can expect from a Barack Obama administration’s technology policy, including who will be running the Federal Communications Commission next year. Plus at the end of the show, hear what Studs Terkel, who died October 31st at the age of 96, had to say about Obama.

Listen or download HERE. Edited for FM broadcast.

  • Bleeped from 3:05 to 3:10 “Fuck” “Shit”
  • Bleeped from 8:40 to 8:45 “Fucking Brilliant”
  • Bleeped from 9:30 to 9:45 “Bullshitter” “All Fucked Up”
  • Bleeped from 11 to 11:30 “Fuck Em” “Cow Shit” “Bullshit” “Bullshitter”

notinfrontofthechildrenMarjorie Heins is a lawyer, activist, writer, and founder of the Free Expression Policy Project. Heins founded and directed the Arts Censorship Project at the American Civil Liberties Union from 1991-1998 and was co-counsel on the ACLU’s Reno v. ACLU brief to the U.S. Supreme Court, which ultimately led to striking the Communications Decency Act as an unconstitutional violation of the First Amendment. She is a graduate of Harvard Law School.

Here are some highlights from her great piece about her latest trip to the Supreme Court, published on the Free Expression Policy Project website…

Although Justices Roberts and Scalia dominated the November 4 argument, Justices David Souter and John Paul Stevens joined Justice Ginsburg in expressing skepticism about the fleeting expletives rule. Justice Stevens, the author of Pacifica 30 years ago, asked Acting Solicitor General Gregory Garre, who argued for the FCC, if the Commission takes into consideration whether the use of an expletive is funny. Garre repeated the FCC’s frequent litany about “context”: the agency takes everything into account – audience, time of time, whether the language was gratuitous or pandering. Scalia then quipped: “So a bawdy joke is okay if it’s really good?”

This led to a colloquy about what language, if any, would be more “shocking” to children. Garre asserted that the Cher and Richie comments were indecent because there is more harm to children when a celebrity says these words. Chief Justice Roberts agreed: according to him, this is very different from a soldier shouting expletives in Saving Private Ryan “when your head is being blown off.” Carter Phillips, arguing for Fox, seemed astounded, replying: “It can’t be that the FCC can determine that a child has a different reaction in the two situations.” And in response to a hypothetical in which Roberts seemed to think that a football player yelling expletives would be okay under the FCC’s “contextual” analysis, Phillips pointed out that football players are celebrities too.

Only Justice Ginsburg seemed in favor of addressing head-on the First Amendment problem with a government agency’s shifting, subjective, often whimsical censorship decisions. “This whole argument has an air of futility,” she told Garre. “The Second Circuit more than tipped its hand. Is there a way we can say this issue is before us now”; that we should not ignore “the elephant in the room”? Whether four other justices will agree with her remains to be seen, but Souter, Stevens, and Kennedy – the most likely votes for a free speech-friendly result – did not seem eager to reach the First Amendment question. Justices Samuel Alito and Clarence Thomas said nothing at all.

The most likely outcome is a decision on the statutory issue only, either affirming or reversing the Second Circuit – that is, either deciding that the fleeting expletives rule was adequately justified or agreeing with the Second Circuit that it is “arbitrary and capricious,” and sending the case back to the agency for further deliberation. The latter result is in a sense the least palatable, because then the indecency regime as a whole would remain in effect indefinitely, while the FCC reconsiders its fleeting expletives rule.

A reversal on the statutory issue would give the Second Circuit an opportunity to transform its “dicta” into a holding that either the fleeting expletives rule or the entire indecency regime violates the First Amendment. This would almost surely be followed by a Supreme Court showdown on the issue.

But there is another possibility. An Obama administration could decide that it no longer makes sense to devote federal government resources to the FCC’s deliberations on whether American children need to be shielded from hearing an occasional “bullshit” or “fuck ’em” on network television.

cher

More about the Supreme Court election day expletives

Jess Bravin, Wall St. Journal:
Last year, a federal appeals court in New York struck down a 2004 Federal Communications Commission rule penalizing the broadcast of “fleeting expletives.” That court found the FCC had been “arbitrary and capricious” in abandoning its prior policy, under which it generally ruled that isolated vulgarisms weren’t enough to trigger the legal standard of indecency.

Chief Justice John Roberts asked how the FCC justified punishing some programs for airing a fleeting expletive, while clearing the CBS “Early Show” when it broadcast a vulgarism uttered by a reality-show contestant.

“The commission has determined that news programs would be treated differently,” Mr. Garre said, “because of the different values present in that situation.” For the same reason, he said the FCC wouldn’t punish broadcast of a news report on the Supreme Court argument itself, even if it included the words at issue.

Greg Stohr, Bloomberg:
Defenders of the FCC rule call it a needed step to combat a sharp increase in profanity on broadcast television. Just last week Philadelphia Phillies player Chase Utley, at a televised rally celebrating the team’s World Series victory, shouted, “World champions, world fucking champions.”

Dahlia Lithwick, Slate:
Justice Ruth Bader Ginsburg, at one point, observed that the whole case has an “air of futility” because, if the court just decides the narrow administrative issue, the First Amendment problem is still “the elephant in the room.”

Justice Ginsburg can’t understand why an expletive-rich broadcast of Saving Private Ryan was spared the FCC’s wrath while a program about the history of jazz was tagged for indecency. “There’s very little rhyme or reason which one of these words is OK and which isn’t,” she tuts.

Neither Scalia nor Roberts will accept the argument that there is some higher standard to be met for administrative regulation just because speech is involved.

It’s hard to say how this all shakes out. Three justices say very little. Two clearly favor granting the FCC even more standardless discretion. The rest keep offering peanuts to the elephant in the room. It’s a safe bet that the court will try to stick to the narrow administrative question, despite the justices’ itch to talk dirty. Mostly, though, it’s a bitterly disappointing day for those of us who’d looked forward to hearing some filthy words at the high court. But, having run the whole case through the FCC’s highly subjective, context-based smut filter, I did come up with the following list of dirty words from today’s arguments: Briefs. Golden globes. First blow. Dung. Pipeline. Jolly-woggle. Perhaps it’s true that the Supreme Court can take away our F-bomb. But they cannot touch our dirty, dirty minds.

11/4/08 Email to Common Cause Media Reform and other lists-
The Court was surprisingly unsympathetic to the broadcasters’ arguments that the FCC had been too aggressive and inconsistent in its new enforcement of the indecency rules. In particular, Chief Justice Roberts and Justice Scalia seemed completely unsympathetic to any argument that the FCC had overstepped its bounds. While there were a few concerns expressed about the inconsistency of the FCC’s decision, it didn’t seem to be swaying a majority of the court. So it seems that Martin’s regime might get upheld.

So, it is not a good day for those of us who have been concerned that whether you agree or disagree with the FCC’s decision to regulate indecency in the first place, the current regime has been unpredictable and threatening particularly for smaller broadcasters who can get caught by FCC’s new increased fines and vague standards. On the other hand, for everyone who was concerned that the Court could take this opportunity to undermine the constitutional justification for regulating broadcasting altogether, we will likely live to fight another day.

Of course, all of this is just a prediction based on oral argument and oral argument is never completely clear. The decision won’t likely come out until next year and, theoretically a decision could wait as long as the end of the term next summer. –Cheryl Leanza, Policy Director, United Church of Christ

Obama 2008
Obama Tech Policy in 2009

President-elect Barack Obama could name current Democratic FCC commissioners Jonathan Adelstein or Michael Copps to the position of the agency’s chairman. There has also been speculation he will name a chairman from outside the FCC, with the following names floating around: Julius Genachowski, Lawrence Strickling, Don Gips and Blair Levin. For the record, I’ve never heard of any of these men either.

There is a very interesting dynamic at the Federal Communications Commission right now, because of how the political appointments there work. Commissioner Adelstein and Republican commissioner Deborah Tate have not been reconfirmed by the Senate, even though their terms have expired. President Bush renominated both of them to five-year terms, forcing Democrats in the Senate to avoid voting before the August recess.

If Republican Chairman Kevin Martin opts not to retire, as chairmen customarily do when the Presidency changes parties, the Republicans would hold onto a three-member majority on the five-member commission. Obama names the new chairman either way, but holding off on Tate’s nomination assures Democrats of an immediate FCC majority next year.

In terms of policy, David Oxenford writes November 4th on Broadcast Law Blog Obama will likely deliver on his promise to appoint a Chief Technology Officer as a cabinet-level position to deal with technology and communications. Obama is also expected, Oxenford writes, “to look for ways to encourage minorities and other new entrants into broadcast ownership.” Oxenford also expects, “regulation that imposes some public interest obligations on broadcasters.”

President-elect Obama has named tech executives to his transition team, according to CNET. Julius Genachowski previously served as chief counsel to former Democratic FCC Chairman Reed Hundt, as well as working for InterActiveCorp, an investment firm and co-founding a venture capital organization. Sonal Shah works for the philanthropy division at Google.

CNET reporter Martin LaMonica writes November 5th that Obama is expected to be the first green high-tech president. Clean tech under Obama will include less controversial ideas such as:

  • An investment in upgrading the power grid which would make it easier to use solar and wind.
  • A national renewable portfolio standard that mandates utilities get 10 percent of electricity from solar, wind, or geothermal by 2012.
  • Continued support for biofuels and introduction of low-carbon fuel standard.
  • Increased fuel-efficiency standards and tax rebates for plug-in hybrids.

However Obama has also pledged some more controversial plans, namely:

  • A carbon cap-and-trade regime meant to make low-carbon technologies more price competitive.
  • Research on so-called clean coal technologies to store carbon dioxide emissions underground.

realchange
Democracy Now host Amy Goodman is skeptical about these and other Obama policy plans that could potentially bring huge profits to corporations. In her weekly syndicated column, entitled Organizer in Chief published November 6th by Truth Dig, Amy Goodman writes:

Before heading over to Grant Park in Chicago, Sen. Obama sent a note (texted and e-mailed) to millions of supporters. It read, in part: “We just made history. And I don’t want you to forget how we did it. … We have a lot of work to do to get our country back on track, and I’ll be in touch soon about what comes next.” But it isn’t enough for people now to sit back and wait for instructions from on high. It was 40 years ago in that very same place, Grant Park, that thousands of anti-war protesters gathered during the 1968 Democratic National Convention, demanding an end to the Vietnam War. Many from that generation now celebrate the election of an African-American president as a victory for the civil rights movement that first inspired them to action decades ago. And they celebrate the man who, early on, opposed the Iraq war, the pivotal position that won him the nomination, that ultimately led to his presidential victory.

Another son of Chicago, who died just days before the election, was oral historian and legendary broadcaster Studs Terkel. Amy writes, I visited him last year in their shared city. “The American public itself has no memory of the past,” he told her. “We forgot what happened yesterday … why are we there in Iraq? And they say, when you attack our policy, you’re attacking the boys. On the contrary … we want them back home with their families, doing their work and not a war that we know is built upon an obscene lie. … It’s this lack of history that’s been denied us.”

Amy concludes her column, writing-

The Obama campaign benefited from the participation of millions. They and millions more see that the current direction of the country is not sustainable. From the global economic meltdown to war, we have to find a new way. This is a rare moment when party lines are breaking down. Yet if Obama buckles to the corporate lobbyists, how will his passionate supporters pressure him? They have built a historic campaign operation—but they don’t control it. People need strong, independent grass-roots organizations to effect genuine, long-term change. This is how movements are built. As Obama heads to the White House, his campaign organization needs to be returned to the people who built it, to continue the community organizing that made history.

studsterkel
Of Studs Terkel’s death, Chicago Tribune reporter Patrick Reardon writes he was “born in New York City but came to embody Chicago as no other writer or cultural figure ever has. And few have left such a deep literary imprint. He took the obscure academic exercise known as oral history and turned it into literature. In transcribing the words and hopes of ordinary people, he gave voice to the voiceless.” Reardon continues, “whether on radio or on the page, he used his words to celebrate the People with a capital P and to protest their oppression by the stupid and powerful.”

According to Jeff Cohen, founder of Fairness and Accuracy in Reporting, Studs Terkel will never be silenced. “Studs received generally favorable treatment from mainstream media. The respect was not mutual. He decried the elite media’s coziness with the powerful, the timidity that subverted public television, and the censorial ways of corporate media bosses.”

In his last interview, October 23rd, a week before his death at the age of 96, Studs Terkel told Edward Lifson of Huffington Post, “Community organizers like Obama know what’s going on. If they remember. The important thing is memory. You know in this country, we all have Alzheimer’s. Obama has got to remember his days as an organizer. It all comes back to the neighborhood.”

According to the piece, Studs Terkel was hoping for an Obama landslide. “I’m very excited by the idea of a black guy in the White House, that’s very exciting,” he said as he was hanging up, “I just wish he was more progressive.”

Music by Ooah & Ernest Gonzales. Produced in the studios of Boise Community Radio, and also airing on KRFP Moscow.

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Download or listen to today’s 30-minute Digital Crossroads HERE. If you are short on time, but want to know what’s happening , you can also listen to a shorter segment (7:30) highlighting the Local Community Radio Act and ongoing webcasting royalty disputes HERE.

Today’s Digital Crossroads includes headlines covering: minority representation lawsuits against Arbitron, a study showing the payola agreement hasn’t helped independent music, Radiohead’s new pressure group Featured Artists Coalition, the FCC and indecency headed to the Supreme Court on Election Day, and torture music royalties might be owed by the US military for reportedly playing a David Gray song “Babylon” repeatedly at Guantanamo Bay during torture and interrogation.

The features include a look at the Radio for People Coalition, the Local Community Radio Act, and the ongoing webcaster royalty disputes.

Arbitron sued for underrepresentation of minorities-
New York Times writer Brian Stelter reported October 6th– The office of New York attorney general Andrew Cuomo announced they are suing Arbitron, the company that compiles audience ratings, because of concerns that minority listeners are not being fairly represented. The new ratings system relies on hand-held devices called portable people meters or PPM, which Attorney General Cuomo’s office says do not adequately account for young African-Americans and Hispanics, as well as all people who do not speak English, and cellphone-only households. Ratings for some minority broadcasters dropped considerably during the past year of testing the people meters, which a coalition of minority broadcasters claims would “disenfranchise minority communities and have a devastating impact on small businesses.”

According to the Associated Press– after the state of New Jersey filed a similar suit against Arbitron, the radio ratings service company filed a countersuit in U.S. District Court, claiming the attorneys general are interfering with the rollout of the PPM. Digital Crossroads will continue to follow this story, which has big implications for minority representation on the air.

Future of Music Coalition says payola settlement has not helped independent music-
Radio trade publication FMQB wrote October 21st– The American Association of Independent Music and the Future of Music Coalition have released results of a study demonstrating that 92 percent of independent labels report no change in their relationships with commercial radio since the FCC a year ago signed agreements with four major commercial radio broadcasters (CBS Radio, Clear Channel, Entercom and Citadel) that was supposed to increase independent music on the radio. Then Attorney General Elliot Spitzer’s high-profile payola investigation led to an agreement by the big radio conglomerates which has reportedly not increased access or cooperation beyond a few isolated instances. Future of Music Coaltion Executive Director Ann Chaitovitz said “This report represents important groundwork to ensure that radio is accessible to local and independent artists and serves its local communities. By documenting the historic and ongoing barriers between commercial radio and independent music, we help ensure accountability and hopefully create more favorable conditions for independent artists and labels.” You can download the full study, available HERE.

Radiohead has joined the Featured Artists’ Coalition-
Ian Youngs reported October 3rd on BBC News that UK pop stars are taking action to gain ownership and control of their work from record labels. Radiohead, The Verve, Robbie Williams, Klaxons and dozens of other acts have joined a new pressure group called Featured Artists’ Coalition. Their aims include keeping the rights to music they create and fair compensation when their songs are sold in new ways. As power shifts in the increasingly digital music industry, many acts feel ignored when their record labels and music publishers strike new licensing and publishing deals.

Does US Military Owe Torture Music Royalties?
According to The Guardian– David Gray’s song “Babylon” is allegedly one of the most popular torture songs at America’s prison at Guantanamo Bay, Cuba. According to reports, loud music is being used by Americans during interrogation of suspected terrorists. David Gray is not happy about it, telling BBC– “No one wants to even think about it or discuss the fact that we’ve gone above and beyond all legal process and we’re torturing people… It doesn’t matter what the music is, it could be Tchaikovsky’s finest or it could be Barney the Dinosaur… We’re talking about people in a darkened room, physically inhibited by handcuffs, bags over their heads and music blaring at them… That is nothing but torture.”

The question Eliot Van Buskirk at Wired Magazine has been asking– is whether the Bush administration owes royalties on the song reportedly played on heavy rotation, not that the song itself constitutes torture, he points out. “Arguably,” Van Buskirk writes, blaring “Babylon” over and over “constitutes a public performance and conceivably makes it subject to royalties owed ASCAP and BMI, companies that collect royalty payments on behalf of musicians.” The issue may get resolved soon after the Presidential election as Barack Obama, John McCain and several third-party candidates all want to shut Guantanamo down. Still, as outlandish as this may sound, remember the royalty collection agencies squeeze money out of nursing homes, hospitals and prisons in the continental US already.

Radio For People Coalition

One year ago, after many years of anticipation, The FCC lifted a freeze on applications for full-powered, noncommercial (NCE) radio licenses between October 12 and October 22, 2007. During those ten days, more than 350 local community groups across the country applied for frequencies on behalf of community radio. NCE frequencies, which reside on the FM dial between 88.1 MHz and 91.9 MHz, are granted to American citizens by the federal government as a public trust at no cost.

“This is the last free spectrum,” said FCC attorney John Crigler, who helped community radio applicants. “and this filing window will have social consequences. It is a last opportunity to have a fight about values and how public spectrum ought to be used.”

Radio for People is a national coalition for promoting and supporting grassroots independent media. They are independent groups, lawyers, radio engineers, radio stations, free media advocates, professional associations, social justice activists, and many other concerned folks who have joined together in anticipation of the upcoming FCC noncommercial license application window, to encourage the creation of more independent community radio stations. They made the case that the application window was an important one-time opportunity, believing that a significant number of the radio licenses made available should be used for local community radio.
Key members of the Radio for People coalition:

Common Frequency
Common Frequency is a group of dedicated individuals with backgrounds in college and community broadcast media, determined to facilitate more public access to the airwaves. They alert non-profit and educational institutions regarding broadcast application opportunities, encourage public participation in radio broadcasting, promote a diversity of viewpoints on the public airwaves through the airing of grassroots-produced public affairs programming, promote music education and independent artists on non-commercial radio, and provide resources and consultation to new stations in areas of station constructing and governance.

Free Press
Free Press is a national nonpartisan organization working to increase informed public participation in crucial media policy debates, and to generate policies that will produce a more competitive and public interest-oriented media system with a strong nonprofit and noncommercial sector.

Future of Music Coalition
The Future of Music Coalition is a not-for-profit collaboration between members of the music, technology, public policy and intellectual property law communities. The FMC seeks to educate the media, policymakers, and the public about music / technology issues, while also bringing together diverse voices in an effort to come up with creative solutions to some of the challenges in this space. The FMC also aims to identify and promote innovative business models that will help musicians and citizens to benefit from new technologies.

National Federation of Community Broadcasters
The National Federation of Community Broadcasters (NFCB) is a national alliance of stations, producers, and others committed to community radio. NFCB advocates for national public policy, funding, recognition, and resources on behalf of its membership, while providing services to empower and strengthen community broadcasters through the core values of localism, diversity, and public service.

Pacifica Radio Network
Pacifica Radio Network is the oldest noncommercial radio community radio network in the United States. Pacifica Radio founded the concept of listener-sponsored community radio and has championed free-speech broadcasting since 1949 and remains commercial-free, free-speech radio. Today the network includes 120 community, college, low-powered, public, and Internet radio stations.

Pacifica’s mission is to promote peace and justice through communication between all races, nationalities and cultures. They strive to contribute to the democratic process through public discourse and promotion of culture. Unbeholden to commercial or governmental interests, we recognize that use of the airwaves is a public trust.

Prometheus Radio Project
The Prometheus Radio Project is a non-profit organization founded by a small group of radio activists in 1998. They believe that a free, diverse, and democratic media is critical to the political and cultural health of our nation, yet they see unprecedented levels of consolidation, homogenization, and restriction in the media landscape. They work toward a future characterized by easy access to media outlets and a broad, exciting selection of cultural and informative media resources.

Public Radio Capitol
Public Radio Capital’s (PRC) mission is to strengthen and expand public radio services in communities nationwide, so that people have greater program choices for in-depth information, unbiased news, diverse music and cultural programming. PRC is supported in this mission by grants from the Ford Foundation, Surdna Foundation and other generous contributors.

Since its founding in 2001, Public Radio Capital, a not-for-profit 501(c)(3) organization, has secured public radio services for over 22 million people nationwide. In its role to broaden the reach of public radio, PRC is the industry’s leading advisor in planning, acquiring and financing new public radio channels. PRC provides public radio organizations with business planning, consulting, station appraisals, brokerage, acquisition and financial advisory services.

Also in this 30-minute radio show I talked about the Local Community Radio Act, which could lead to 1000 new community radio station frequencies opening up if it passes Congress. See Prometheus and Free Press for more info.

Who Gets Cash, Who Gets Airplay: (Hint- not the little guy)

And finally, with big help from Kurt Hanson the man behind the Radio and Internet Newsletter, I try to demystify the ongoing webcaster royalty negotiations. OK, So who’s who in the long-running dispute over Internet Radio royalties? Kurt Hanson, the author of RAIN has some answers

He writes, “One reason for the Internet radio royalty mess is that, in the Digital Millenium Copyright Act of 1998, Congress set up a spiderweb of groups with multiple conflicting priorties that are supposed to somehow come up with reasonable rates.” Hanson is talking about Copyright Owners like Major Labels and Indie Labels, Rich Musicians and Working Musicians, and their negotiating body, Sound Exchange. Then there are the Copyright Users, such as the National Association of Broadcasters, the Digital Media Association, National Public Radio member stations, college broadcasters, religious stations, and small commercial webcasters. The Copyright Users must pay the Copyright Owners for streaming music over the Internet to the public. The ongoing negotiations over how much money is a fair amount take place before the Copyright Royalty Board, who work for the US Copyright Office.

Kurt Hanson writes, “The Webcaster Settlement Act is written to allow private negotiations between Sound Exchange and various subsets of webcasters to have the force of law.”

However, there are internal conflicts on each side of the negotiations. On the webcaster side, the National Association of Broadcasters sees itself as competing with Digital Media Association members like Pandora and with NPR member stations. Meanwhile, small commercial webcasters are working with bigger groups like AOL Radio to bring down the rates, but the bigger webcasters do not necessarily like competition from the little guys, so they do not support a small webcaster rate as actively.

Then you have the Copyright holders. SoundExchange is comprised, according to Kurt Hanson, of 50% record label representatives and 50% musician reps. Indie labels are competing with the big 5 multi-nationals for radio airplay and consumer dollars. They may be more inclined to support Internet radio than large labels, who want to protect their dominance on old fashioned AM and FM radio. Musicians, too, have conflicting priorities. Multimillionare recording artists like Mariah Carey want cash now, whereas hundreds of thousands of working musicians want airplay to build their fan bases. Hanson points out that multimillionaire musicians who are still active like Paul McCartney want airplay, whereas retired musicians like Mary Wilson of The Supremes would prefer cash.

Copyright law is primarily supposed to support active musicians, but the way SoundExchange is set up, the little guys on both sides of the negotiations are at a disadvantage.

The music on the show is courtesy of Ooah, Ernest Gonzales, Gabriel Teodros and The Tasteful Nudes.

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