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Category: Legal
Radio Station Sued for Infringing Rights of Man with Down Syndrome – What It Means to You
By Steven J.J. Weisman
TALKERS
Legal Editor
Among the hats I wear in addition to that of legal editor of Talkers magazine is the mortar board of a professor at Bentley University where one of the courses I teach is Media Law. The recently filed lawsuit by the parents of Adam Holland, a man with Down Syndrome has enough media law issues to fill an entire semester. These issues are also important to you as broadcasters, station owners and managers.
The lawsuit which was filed in federal court in Tennessee on April 22nd, contains counts for invasion of privacy, misappropriation of a likeness, defamation, intentional infliction of emotion distress and violation of a Tennessee statute regarding commercial exploitation of a person’s photograph, however I will deal only with the allegations most appropriate to broadcasters.
A Serious Loss for Howard Stern
By Steven J.J. Weisman
TALKERS
Legal Editor
BOSTON — Sometimes it is, as Mel Brooks commented in his movie “The History of the World, Part One,” good to be the king. But other times it is not. Howard Stern, the self-proclaimed (and not too far off) “King of All Media” took a hit last week when the dismissal of his lawsuit against Sirius XM Radio, Inc. in which he sought more than $300 million in stock awards was upheld by the Appellate Division of the New York Supreme Court.
FCC Dumps Indecency Complaints; Seeks Public Comments on Policy
By Steven J.J. Weisman
TALKERS
Legal Editor
BOSTON – Somehow it seems particularly fitting that the FCC chose April Fools’ Day to issue a press release in which it indicated that as a result of its review of its broadcast indecency rules following the Supreme Court’s decision in the case of FCC v. Fox Television Stations, Inc., it had managed to reduce its backlog of pending indecency complaints by more than one million — which represented 70% of the outstanding pending complaints. How, you might ask, was the FCC able to carefully evaluate more than a million complaints in only six months? It was easy. These cases were summarily dismissed for various reasons, such as being beyond the FCC’s five-year statute of limitations, involved cases outside of the FCC’s jurisdiction, contained insufficient information or were not actionable due to previous established precedents. Cases were also dismissed for being, in the FCC’s words “too stale to pursue,” although there is no FCC definition of staleness. It is also interesting to note that the FCC has not brought an action against a broadcaster for indecency since 2008 and that order of the FCC against Fox involving the 2003 broadcast of the show “Married by America” — which originally carried a $1.18 million fine, later reduced by the FCC to $91,000 — was ultimately voluntarily dismissed by the FCC in September of 2012.
A cynic might find it curious that the reason for the staleness in those cases was the FCC’s total ignoring of these cases for years, although in the FCC’s defense, a reasonable case could be made for the agency’s hesitance to act in the last few years as Fox’s challenge to the indecency regulations made its way through the federal courts and ultimately to the Supreme Court which decided the case (sort of) on June 21, 2012. However, as for the cases that were dismissed for having insufficient information or being not actionable due to previously established precedents, those facts should have been readily apparent to the FCC years ago.
Bill Maher Got it Wrong
By Steven J.J. Weisman
TALKERS
Legal Editor
BOSTON – In early January, comedian Bill Maher appeared on “The Tonight Show with Jay Leno” and stated to Leno, “Suppose that perhaps Donald Trump had been the spawn of his mother having sex with an orangutan, because, well – I didn’t just make this up – the color of his hair…and the color of an orange orangutan is the only two things of nature of the same color. So…” Maher went on to say that he would be willing to donate $5 million to Trump that he could donate to the charity of his choice if he provided evidence that he was not the son of an orangutan. Maher even came up with some possible charity choices for Trump, namely the “Hair Club for Men of the Institute for Incorrigible Douche-bag-ery.”
The entire reference to a $5 million donation to a charity in return for evidence of his birth was an obvious joke (although not apparently to Mr. Trump) relating to Trump’s continuous railing during the recent presidential campaign that President Obama needed to provide his long-form birth certificate to prove he was a native-born American. When the president actually did so, Trump ridiculously moved on to offer $5 million to be paid to charities of the president’s choice if he would provide his college transcripts and passport applications. As an aside, I wonder how much Trump would have offered for the president’s Blockbuster membership card.
Your Radio Station is Vulnerable to Identity Theft
By Steven J.J. Weisman
TALKERS
Legal Editor
BOSTON — We all are aware of the dangers of identity theft and many of us do our best to protect ourselves individually from the dire consequences of having your identity stolen. But what about your radio station? Does it even know that there is a problem?
Recently we have learned that both The New York Times and the Washington Post had their computers hacked into by Chinese hackers and this was not the first time. The hacking into The New York Times and the Washington Post do not appear to be financially motivated, but that is of little solace.
Free Speech Isn’t Always Pretty
By Steven J. J. Weisman
TALKERS
Legal Editor
TAMPA — The circus has left Tampa, Florida. Four years after statements by Tampa talk show host Bubba The Love Sponge (Todd Clem) ignited a lawsuit by rival morning show host MJ Kelli (Todd Schnitt) and two weeks of trial, a jury took a mere three hours to reject Schnitt’s and his wife’s claims of defamation and dismissed all 24 counts of the complaint.
The bizarre case became even more bizarre when during the trial, one of Schnitt’s lawyers, Charles Campbell Jr., was arrested for driving under the influence of alcohol. A motion for a mistrial was denied when the judge was satisfied that the jury had not heard of the charges. It was even alleged by the Schnitt legal team that Campbell had been set up for the arrest after drinking with a paralegal who unknown to him worked for the law firm that represented Clem.
SiriusXM Shareholder Suit Has Little Merit
By Steven J. J. Weisman
TALKERS MAGAZINE
Legal Editor
BOSTON — A few days after Liberty Media Corp. and its chairman, John Malone, announced in an August 17 filing with the Federal Communications Commission that it intended to purchase stock in Sirius XM Radio Inc. sufficient to increase its interest from its present 48% ownership to more than 50% and thereby take over control of the company, the Miami Police Relief and Pension fund filed a lawsuit against Sirius XM Radio Inc.’s board of directors for failing to take action to prevent the potential takeover.
The basis for the lawsuit is the allegation that by failing to do more to prevent Liberty Media Corp. from taking over control of Sirius XM Radio Inc., the directors were breaching their fiduciary duty to the stockholders.
The lawsuit has two chances of success – little and none.
When Is a Death Threat Free Speech?
By Steven J. J. Weisman
TALKERS MAGAZINE
Legal Editor
BOSTON — The recent decision of Milwaukee County District Attorney John Chisholm to charge Timothy Demeuse merely with disorderly conduct with regard to Demeuse’s Facebook posting about talk radio host Vicki McKenna has many people, including Milwaukee County Sheriff David Clarke, upset.
The Facebook posting read “Here’s your real ‘expletive’ death threat ‘expletive.’ Come and get me. I don’t even own a gun. I can make as many threats as I want. I hope someone kills you. I am going to shoot you in the face and rape your dead corpse.”
According to the District Attorney the posting did not qualify for more serious criminal charges. According to Chisholm, “The people we talked to, his circle of friends, said they did not take it as a true threat.”
Victory But Not Clarity at the Supreme Court
By Steven J. J. Weisman
TALKERS MAGAZINE
Legal Editor
BOSTON — Yesterday (6/21/12) the United States Supreme Court issued its long-awaited decision on the FCC’s indecency standards for broadcast radio and television and the decision hardly seems worth the wait.
In a decision that reminded me of a story about the comedian Professor Irwin Corey, who billed himself as the world’s foremost authority, he was asked, “Why do you wear sneakers?” He replied by saying that this actually was two questions. The first question was “Why?” and he went on to a long philosophical discussion of “why.” Then he went on to the second question, “Do you wear sneakers?” and he promptly responded, “Yes.”
In this case the Supreme Court was asked whether or not the FCC’s indecency rules were in violation of the First Amendment. However, rather than answer that question, the court merely determined unanimously, after much discussion, that the standards were applied retroactively and therefore they could not be enforced against ABC and Fox. As for the overriding question of the unconstitutionality of the rules themselves, the Court ruled that it did not even have to answer that question because the application of the FCC’s indecency rule was improperly done in a manner that violated the Due Process clause of the 14th Amendment.
Wisconsin Recall Spurs Question of “Equal Time” on Milwaukee News/Talk Outlets
By Steven J. J. Weisman
TALKERS MAGAZINE
Legal Editor
BOSTON – With the national political season really heating up now that Mitt Romney has secured sufficient votes to win the Republican nomination for president, a Milwaukee talk radio controversy may have far-reaching implications into the media’s role in the upcoming elections at all levels around the country.
Sue Wilson of the organization Media Action Center has complained to the FCC that five conservative local talk hosts on Milwaukee news/talk stations WISN (Clear Channel) and WTMJ (Journal Broadcasting) have been providing time to and actively promoting Republican candidates, including recruiting volunteers for Republican Governor Scott Walker who faces a recall election tomorrow (6/5).
Just My Opinion
By Steven J. J. Weisman
TALKERS MAGAZINE
Legal Editor
BOSTON – The success of any talk show is based on lively, entertaining and sometimes offensive speech. This is guaranteed by the First Amendment. In the landmark 1964 United States Supreme Court case of New York Times v. Sullivan, Justice William Brennan wrote for the majority that we have a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks…”
The protection provided by the First Amendment is not unlimited however. When the speaker states mistruths with malice, that is he or she knows that what he is saying is a lie or makes statements with a reckless disregard for the truth or falsity of the statements, the speaker can be held responsible for libel or slander.
There is another source of protection, however, for those of us who make our living making sometimes controversial 
statements and that is “opinion.” Not all opinion is protected, but when it is made about a matter of public concern, the speaker is protected by the First Amendment and that was the recent ruling of the Appellate Division, Fourth Department of New York when it ruled in the case of Gisel v. Clear Channel Communications, Inc..
The plaintiff, John Gisel had been found not guilty of criminally negligent homicide in regard to his fatally shooting a man in a hunting accident. The day after his acquittal, Gisel’s sister, Jacqueline Inzinga, went on Bob Lonsberry’s talk show on WHAM, Rochester to discuss the case. During their on-air discussion, Lonsberry asked Inzinga how it felt to have a brother who was a “cold-blooded murderer” and whether he “put a notch in the stock of his gun as he kills people?” Lonsberry also stated “that the hunting incident could not have been an accident…”
As a result of those statements, Gisel sued for defamation.
However, the court dismissed the case as a matter of law without even an evidentiary trial by concluding that Lonsberry’s comments qualified as pure opinion. The court stated that reasonable listeners would not conclude that Lonsberry was making statements of fact, but rather of his opinion in regard to underlying facts that were well known to the general public through extensive media coverage of the incident and the judicial hearing. The court also emphasized Lonsberry’s talk show as a “forum for public debate on newsworthy topics, and his statements were made during an on-air debate with his listeners regarding plaintiff’s culpability and whether the jury had properly acquitted plaintiff.” The court noted that the “tone of Lonsberry’s statements were obviously intended to be caustic and confrontational rather than factual” and they found nothing wrong with that. The court concluded that his statements were constitutionally protected expressions of pure opinion and therefore protected by law.
FCC Programming Rules: Obscenity
By Steven J. J. Weisman
TALKERS MAGAZINE
Legal Editor
BOSTON — “At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. The freedom to speak one’s mind is not only an aspect of individual liberty – and thus a good unto itself – but also is essential to the common quest for truth and the vitality of society as a whole.” It is interesting to note that this lofty statement of the principle of free speech came out of a case involving Hustler Magazine. Hustler Magazine v. Falwell 485 U.S. 46, 50-51.
However, although free speech is exalted under our Constitution, it is not unlimited. Title 18 U.S.C. Section 1464 prohibits “obscene, indecent or profane language by means of radio communication.” The duty to enforce this regulation is given by Congress to the Federal Communications Commission (FCC). The consequences of violation of this law are potentially quite severe, ranging from the imposition of monetary fines, referred to by the FCC as “forfeitures” to even the revocation of the broadcasting station’s license to broadcast. The amount of the fine or forfeiture is determined by consideration of the “nature, circumstances, extent and gravity of the violation and with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay and such other matters as justice may require” according to the FCC’s Forfeiture Policy Statement.
The FCC and You
By Steven J. J. Weisman
TALKERS MAGAZINE
Legal Editor
BOSTON – The Federal Communications Commission (FCC) is the federal agency that regulates the radio, television, wire, satellite and cable industries. Although we are all cognizant of this organization, most broadcasters are not as knowledgeable about the FCC as they should be and with this agency’s power to order significant fines as well as even revoke a broadcasting license, it is imperative that all broadcasters be more familiar with what the FCC is and how it operates. This article is the first of a series of articles as an abridgement of an ebook I have written that describes in great detail what you need to know to broadcast safely and efficiently in today’s regulatory environment. In future installments, I will discuss:
- The FCC’s rules on programming including: obscenity, indecency, broadcast of telephone conversations, parodies, libel and hoaxes;
- The FCC’s complaint procedure;
- The FCC’s rules on advertising which is a most important topic today;
- The FCC’s rules on political advertising, particularly in the light of the decision of the United States Supreme Court in the Citizens United case;
- The FCC’s rules on payola, plugging and kickbacks; and
- The FCC’s rules on time brokerage and barter agreements.
Photographer Takes Radio Station to the Court of Social Media
By Matthew B. Harrison
Senior Partner
Harrison Strategies
SPRINGFIELD, Mass. –It is important to know more about intellectual property law than just enough to avoid litigation. Disputes involving intellectual property aren’t always played out civilly within the established legal system. Brawls are erupting in the Wild West of social networking, where threats of litigation don’t have much standing and unconventional is the nature of attacks.
As described in a previous article (A Lesson from the NJ101.5 Case.), a radio station got hit with a copyright infringement lawsuit because it used copyright protected images, stripped the identifying information of the photographer from the image, and posted them on its website inviting listeners to download and alter the images.
The station argued that its usage of the image was in the capacity of “news reporting” — a term which appears in the Copyright Act’s non-exhaustive list of potential purposes of fair use (thereby excusing their behavior from infringement liability). While “news reporting” is in fact a justification for copyright infringement – most cases in which news reporting is argued as a fair use defense fail because it is often misapplied – such as in this instance. The Court disagreed with the assertion that the radio station’s usage was news, ruling that news organizations are not free to use any and all copyrighted works without the permission of the creator simply because they wish to report on the same events a work depicts.
The evolving shift in the employer/talent business model
By Matthew B. Harrison
Senior Partner
Harrison Strategies
SPRINGFIELD, Mass. –– We are in the early stages of a significant shift in the way radio station owners/operators will be managing and paying for content creation. It is becoming increasingly important for radio talent to take stock of their current business relationship with their employers and consider these changes when mapping out future plans.
The shift coming to radio will be similar to what happened in the motion picture industry when the “studio system” in which actors were employed staff members of film factories such as MGM evolved into a model in which they became independent players contracted by production companies on a per-project basis.
The root of this change grows out of the separation of the “radio station” into two very different businesses which, for many decades, were considered one and the same –– radio station as a licensed property and radio station as a production company. The growth of the role played by the internet in the distribution of terrestrial radio station programming is exposing and speeding up the distinction between these two concepts.
The era of intellectual property law
By Matthew B. Harrison
Senior Partner
Harrison Strategies
SPRINGFIELD, Mass. –– In a recent article, Michael Harrison predicted that Intellectual Property Law would dominate talk radio’s legal concerns in the era that is unfolding. (It is filed at www.talkers.com under Michael Harrison and is titled “The Ticking of the Clock.”)
As talk programming evolves into new means of digital distribution through advances in technology, so does our need to understand intellectual property. While evolutionary, the nature of the rights themselves –– to control and exploit the products of one’s creativity and innovation –– remains consistent, the manner by which they are expressed and exchanged is constantly attempting to adapt to advances in technology.
The invention of, in turn, the printing press, the phonograph, radio and television broadcasting, cable, transmission from satellite, VCRs, CDs, DVDs, and now the internet has affected both the form and the substance in the interpretation of intellectual property rights.
A lesson from the NJ101.5 case
By Matthew B. Harrison
Senior Partner
Harrison Strategies
SPRINGFIELD, Mass. –– When choosing to use non-original materials as a portion of programming, it is important to make sure that such usage falls squarely within the accepted affirmative defense of fair use.
A New Jersey federal appeals court recently reinstated a copyright and defamation lawsuit against New Jersey talk radio station, New Jersey 101.5 (WKXW-FM) and its former PM drive team “Carton & Rossi.” Craig Carton currently co-hosts the WFAN, New York morning drive show “Boomer & Carton.” Ray Rossi hosts an evening show on New Jersey 101.5.
The case was simple. New Jersey Monthly (NJM) hired a photographer to take a photo of Carton & Rossi to accompany an article to be published. An unknown employee of WKXW-FM then scanned in the image from NJM and posted it to the WKXW-FM website, among others. The image, as scanned and posted, cut off reference to NJM’s story title, and eliminated the gutter credit identifying the photographer. The station invited visitors to alter the image and submit resulting versions. In all, the station posted 26 of these submissions. At no time did the station or the hosts ask the photographer for permission, and as a result –– the photographer sued.
