FCC’s net neutrality rules head to court today

By on September 9, 2013 in Center for Media Law and Policy

Today the D.C. Circuit will hear oral arguments in Verizon v. FCC, Verizon’s challenge to the FCC’s Open Internet Rules passed in 2010. The rules are designed to prevent Internet service providers from engaging in practices that favor certain content.

While the main question in this case is whether the FCC has the authority regulate the Internet in this way, also at issue is Verizon’s novel First Amendment claim: Verizon contents that it has a First Amendment right to make decisions about how to treat Internet traffic on its network.

Read more about this case and the FCC’s Open Internet Rules here.

 

 

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A UNC Student’s Summer Experience at the FCC

By on September 8, 2013 in FCC

FCC-LogoAs I mentioned back in March, the Center provides summer grants to UNC law and graduate students who have unpaid or low-paying public interest jobs in the field of media law or media policy. (I hope some of you will apply for a grant next year!)  If you have been reading Natasha Duarte’s posts this summer, you have a sense of the amazing experience she had at the Electronic Frontier Foundation.

Well, Natasha wasn’t the only UNC student who had a great summer experience. Below you will find a summary of Minisha Patel’s internship at the Federal Communications Commission.  Minisha is a 3L at the UNC School of Law.

The summer of my second year of law school, I worked as an intern for the Federal Communications Commission (FCC). While at the Commission, I worked in the Wireline Competition Bureau, the Commission’s largest and most important bureau. I worked on the Lifeline program, which is a FCC program created in order to aid low-income individuals by providing them with the opportunity to have discounted phone service. The sole purpose of the Lifeline subsidy is to enable low-income individuals to have the same access to telecommunications as the rest of the population. The Lifeline program’s goal is to connect low-income individuals and aims to enable them to access jobs, health care services, schools, and emergency contacts. The program was created by the Reagan administration but is more popularly known as the Obamaphones.

This summer was a very critical time for the Lifeline program as the telephone carriers and subscribers receiving discounts from the program were defrauding the program. This summer, I worked alongside the FCC attorneys to help create a database and stop the carrier’s that are most liable for frauding the system. In addition, I Engaged in legal research and writing in conjunction with several major rulemakings and adjudicatory proceedings, drafted public notices, small business compliance guides, and comment summaries. I also analyzed specific areas of telecommunications law and administrative law and produced memoranda to assist FCC attorneys. Throughout the course of the internship, I worked directly with attorneys on assigned subject matter and attended meetings on a bi-weekly basis.

This internship helped me gain knowledge about interpreting regulations and taught me about the inner workings of the Federal Communications Commission. The internship further enabled me to understand how the government operates with respect to media and telecommunications law.

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Ads on Wheels: More First Amendment Problems in the Triangle

By on September 4, 2013 in First Amendment

Nearly a year after an advertisement on Chapel Hill city buses sparked controversy, the City of Raleigh is experiencing its own public outcry over transit advertising. The Humane Society of the United States has filed suit against the Raleigh Transit Authority over the agency’s rejection of an advertisement featuring pigs in confined gestation crates used on factory farms.

The proposed ad would have wrapped around the exterior of buses and said, “How would you like to spend the rest of your life in a space as small as a bus seat? It’s what Big Pork wants for pigs. But together we can change that.” The Raleigh Transit Authority rejected the ad because it was “too negative.” 

The complaint, filed in the U.S. District Court for the Eastern District of North Carolina, alleges that the Raleigh Transit Authority’s rejection of the ad is a violation of the Humane Society’s First and 14th Amendment rights. Under the RTA advertising policy, some ads are prohibited, including those for illegal products or services, alcohol or tobacco, or advertisements that are false or misleading. Additionally, advertisements that deal with political issues, causes, or candidates, or that advocate or oppose a particular religion, belief, or creed, are not permitted.

But what about advertisements that are simply “too negative”?  There is nothing in the RTA policy about the agency’s authority to reject advertisements based on their negative messages. Emails between the RTA and the Humane Society show that the rejection took place because the ad was “too negative,” not because it was a political issue or cause. That puts the RTA in a pinch, because its decision to reject the ad was not in line with its own policy. However, one question that will need to be addressed is whether the Humane Society’s advertisement could fit into the political issues/causes category of prohibited advertisements. If the better treatment of pigs is an example of a political cause, then the RTA could refuse to accept the advertisement, and doing so would be in line with RTA policy. But that’s not what happened. The RTA refused the ad because the agency was uncomfortable with the negative tone of the Humane Society’s message.

The Supreme Court has dealt with the issue of transit advertising and the First Amendment only once, in Lehman v. City of Shaker Heights (1974). In that case the Court held that a public forum had not been created in Shaker Heights, Ohio, buses, and that the city’s refusal to permit a political candidate advertisement was constitutional. However, the Supreme Court also has been clear that governments may not discriminate against speech based on viewpoint.

Controversial transit advertisements have been popping up across the nation over the past few years, with several cases going before federal courts in Washington, D.C., California, and Pennsylvania. The subjects of these ads have ranged from Israel to Islam to inmate voting rights. Two recent federal district court opinions explored viewpoint discrimination as it applies to transit advertising, concluding that the refusal to permit ads calling for support of Israel was unconstitutional viewpoint discrimination.

The ad in question in Raleigh already has been featured on buses in Des Moines, Iowa, and Washington, D.C. “without controversy,” according to the Humane Society. The ads’ impact in North Carolina could be significant, however, since N.C. is second in the nation in pork production.

To read more about the contentious transit ads in Chapel Hill last year, see this blog post on the issue.

Liz Woolery is a third-year Ph.D. student studying legal and regulatory issues in mass communication at the UNC School of Journalism and Mass Communication.

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New York Court Orders Fox News Reporter to Comply With Colorado Subpoena to Appear in Holmes’ Criminal Trial

By on August 24, 2013 in Journalism

Gavel-300x225This week, the Appellate Division of the New York Supreme Court affirmed a decision by a lower court that a Fox News reporter must comply with a Colorado subpoena to testify as a witness — and possibly divulge her confidential sources — in the criminal trial against James Holmes, the alleged gunman of the Colorado movie theater shooting.

In July 2012, Jana Winter released an article that claimed Holmes sent a notebook to his psychiatrist that contained details of his planned attack. Holmes’ defense attorneys, concerned that the notebook leak came from a Colorado law enforcement official and that such information may affect their client’s constitutional right to a fair trial, sought sanctions against fourteen law enforcement officials who knew of the notebook. When none of the officials admitted to leaking information to the media, on January 17, 2013, Holmes’ defense attorneys moved to compel Winter to testify and produce notes from the unnamed sources cited in her article. The Supreme Court of New York County enforced the Colorado District Court subpoena and Winter appealed.

Majority Opinion

On Wednesday, the New York Supreme Court Appellate Division held 3-2 that Winter is required to testify in Holmes’ criminal case. The opinion, written by Justice Clark, cited the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases (CPL 640.10), which requires a witness to testify in another state. The court held that the petitioner complied with its burden of proof under CPL 640.10 when it secured a certificate from an out-of-state Colorado judge showing that Winter’s testimony was “material and necessary” and that the compulsion to testify would not cause Winter undue hardship as the petitioner would pay for her expenses.

The court held that New York’s shield law does not grant Winter protection from the Colorado subpoena to testify in Holmes’ case. The majority opinion held that Winter will be required to testify in Colorado and that she be subject to any testimonial privileges available under Colorado’s shield law rather than those privileges granted under New York’s shield law. The majority held that “the inquiry into admissibility and privilege remains the province of the demanding State [of Colorado] rather than the sending State [of New York].”

As for the substance of Winter’s testimony, the majority decision emphasized the distinction between compelling Winter to testify and compelling her to divulge her confidential sources, saying that the record does not establish with “absolute certainty” that the Colorado District Court will require Winter to disclose her confidential sources.

The majority opinion also ordered that the court record in New York be unsealed, citing a strong public interest in open access to court proceedings.

Dissenting Opinion
Two Justices dissented. The dissenting opinion written by Justice Saxe argued that Winter is protected from appearing in another state where there is a “substantial possibility” that the court will require her to identify her confidential sources. The dissent cited the protection granted to Winter under New York’s state shield law, Civil Rights Law Section 79-h[b].

In response to the majority’s CPL 640.10 discussion, Justice Saxe challenged the majority’s analysis of the “undue hardship” requirement of CPL 640.10. The opinion referenced the initial subpoena for Winter, saying that the January 2013 certificate to compel Winter to testify was ordered to identify who disclosed the notebook contents to the journalist.

Citing New York’s public policy of providing absolute protection for reporters, the dissent argued that the majority is incorrect in its analysis of what constitutes “undue hardship.” The dissent argued that the analysis is not limited to the costs and time of travel and missing work but should also acknowledge that the ordered disclosure of Winter’s confidential sources may affect her career as a journalist. The dissent stated that the majority ignored the “practical reality” of Winter’s situation, and therefore erred in holding that Winter’s testimony would not necessarily require her to divulge confidential sources.

Looking Ahead

The court battle is far from over. On Wednesday, Fox News filed an appeal notice with the New York Court of Appeals. The appeal will ask New York’s highest state court to reject the lower court’s decision that Winter must comply with the Colorado subpoena.

Samantha Scheller is a 2L at the University of North Carolina School of Law.

(Photo courtesy of Flickr user steakpinball pursuant to a Creative Commons CC BY-SA 2.0 license.)

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