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News of the Moment

7/22/14 - FCC: Democracy is a Bug, We're Working On It [link to this story]

It's always a little happy-sad to watch the FCC solicit public comment on an issue and then be surprised and self-defensive when the public responds in force. This time, the cycle involves the FCC's consideration of rules involving network neutrality: more than a million comments were filed during the initial round of feedback. That's a new record for public participation in a single FCC policy proceeding. (Now you have until September 10 to submit reply-comments.)

There would not have been such an upwelling of public comment on media policy were it not for the Internet, so it's only fair that an Internet policy proceeding now holds the crown for citizen input. Similarly, the FCC's apparent inability to cope with this input tells us much about the state of policymaking in the United States.

Like much of our infrastructure, it is wobbly and prone to upset. The FCC's Electronic Comment Filing System, developed in 1996 and never substantially updated, crashed multiple times during the initial comment-round. The most notable instances happened in June, after John Oliver helpfully redefined "net neutrality," and again just hours before the initial-comment deadline last week.

David Bray, the FCC's Chief Information Officer, has released traffic logs showing the spikes in ECFS traffic caused by the literal manifestation of "the public interest"—"some of the highest concurrent commenting levels that ECFS has seen in its 17-plus year history." Interestingly, FCC staff can only batch-download 100,000 comments at a time from ECFS—simply put, the system was never designed for mass public participation in media policy.

Chairman Tom Wheeler squarely blames Congress for these troubles. Nearly half of the FCC's information infrastructure is 10+ years old, and tens of millions of dollars of system upgrades were cut from the federal budget as part of the sequestration process, leaving those systems (like ECFS) systems to atrophy. "It is particularly distasteful that the FCC – the agency entrusted with promoting a world-class broadband infrastructure for the nation – could ever be incapable of dealing with Americans expressing themselves via that broadband capability," seethes Wheeler.

Note that nobody's talking about what will actually happen with the public comments themselves. Broadcast attorney Harry Cole, for whom navigating the FCC is a full-time job, conservatively estimated it would take decades to process and respond to them under current resources and workflow—maybe a year if the agency makes network neutrality its top priority. "The transparency of that end of things is far more important to the outcome than the raw hourly numbers of incoming comments," Cole says. "Ideally the Commission has a plan for that. We’d love to know what it is. Wouldn't you?"

Shirking the duty to process public comment simply because it is overwhelming could open up any future network neutrality rulings to appeal. Then again, it's not like there's formal ground-rules at the FCC to engage with such comments: such processing is left up to staff, who apparently have great latitude to ignore or dismiss them as they wish.

Since Chairman Wheeler both personally invited comments on this network neutrality proceeding and committed the agency to seriously consider them—and he would also like to have some rule in place by the end of the year—any shirking will have to be creative. That's not the type of "innovation" the Internet nor a democracy in austerity-mode needs.

7/15/14 - Wrath of Interns Reaches Clear Channel [link to this story]

The nation's largest radio conglomerate is the newest target in a growing crusade against internship exploitation. Plaintiff Liane Arias alleges her internship at Clear Channel consisted of menial administrative tasks and staffing promotional events—things other employees would have done had her free labor not been available, and a far cry from the educational experience her internship promised. More importantly, she's asking for class-action status for her case.

Arias is represented by an NYC-based law firm that specializes in labor and employment law and is making a name for itself in unpaid internship litigation, spearheading a similar complaint against SiriusXM satellite radio. This is just the latest in a series of lawsuits filed by former interns against media companies in the last few years: the floodgates opened in 2012 when unpaid interns for PBS' Charlie Rose Show settled a class-action lawsuit. Then, in June of 2013, a judge ruled that the Fox Searchlight movie studio violated labor law in its use of unpaid interns.

Since then, suits have been filed against Condé Nast (which promptly closed its internship program), Gawker Media (still in court) NBC Universal (still in court), and Viacom (still in court), among many others. Clear Channel is the first terrestrial radio broadcaster to be hit with an unpaid internship lawsuit.

It's no secret that corporate America has slashed jobs and attempted to make up the difference with automation, outsourcing, and in many cases, the labor of unpaid interns. These practices are especially prevalent in the media industries, where the "glamour" and "access" they ostensibly offer means much more labor supply than demand.

Thus many unpaid internships are nothing more than glorified gopher-jobs with a potentially valuable brand name. Such practices are found even in the "liberal" or "progressive" media, who fall far short of the values they espouse in their own workplaces.

Colleges and universities have fed into these schemes by uncritically embracing unpaid internships as some vaguely-defined rite of passage. In many instances, that doubly screws students: they don't get paid at their intern-job and have to pay for the college credit they receive for working. If it's a "prestigious" internship in a big city, students are also expected to front the travel and housing costs for the duration.

Only recently has there been any move in higher education to critically evaluate internship opportunities, spurred in part by an ongoing ProPublica investigation into the nature and scope of unpaid internships. This ambitious inquiry seeks data on internships across economic sectors, including self-reporting from interns directly. The reports from arts and entertainment interns catalog such exciting and educational work as lunch-delivery and dog-walking.

Of course, not all internship experience is exploitative and valueless, and not all schools are mindlessly feeding students into the internship mill. In broadcasting and journalism, there's a long history of pre- or paraprofessional experience as part of the educational process. But it's incumbent upon educators to make sure that theses experiences are meaningful.

When we revised the Broadcast Journalism degree program at Brooklyn College last year, we instituted a requirement that all students must complete an internship or an independent study. This allows students to avoid internships altogether, though they still must spend at least a semester engaged in some intensive, specialized study. Our department also evaluates internship opportunities to weed out the meaningless and we encourage our students to look beyond the traditional corporate media for internships.

Sometimes the value of an internship is that it teaches you what you don't want to do with your career. For example, I've had students intern at several local television channels and the unvarnished look they got at the vapid pack mentality taught them more about that business than me and my colleagues ever could.

Of course, my experiences are colored by being based in the #1 U.S. media market, where decent internship opportunities abound, and at an institution where internship stipends are available. Similarly, the CUNY Graduate School of Journalism provides stipends for students on summer internships—still not enough to live meaningfully on in Manhattan, but tons better than nothing.

In a perfect world, everyone would get paid what they (and the work they do) are actually worth. Labor is money, and inculcating students with the notion that their labor is worthless sets a depressing career precedent. If the change won't come from the educator or "employer," then keep those lawsuits coming.

7/8/14 - iBiquity Lawyers Up to Defend Patents and Business Model [link to this story]

It's been a busy year for iBiquity Digital Corporation in court, as it fends off attacks on its HD Radio patents and licensing structure. In both cases, iBiquity seems to have dodged a few bullets and may even have the upper hand. However, they also illustrate the tenuous nature of HD's adoptive trajectory.

In March, Continental Automotive Systems filed suit against iBiquity in federal District Court in Illinois, claiming that iBiquity was violating its own licensing agreements. Continental is the third largest global supplier of parts to the automotive industry, and its Automotive Systems division makes infotainment components. Continental has been an HD Radio technology licensee since 2007.

The dispute began in 2012, when Continental's initial licensing agreement with iBiquity came up for renewal. It centers around how the HD receiver royalty fee is calculated: iBiquity claims it is due a percentage of the sale-price for each infotainment system sold, while Continental argues its royalty payments should be based on the value of iBiquity's proprietary components alone.

Continental accuses iBiquity of "improperly attempting to expand the scope of its patent monopoly to include unpatented articles through its demands that Continental pay royalties on the value of non-patented features," and alleges it has overpaid iBiquity more than $1 million over the years they've been doing business. According to Continental's lawyers, "iBiquity's royalty demand rivals the cost of the underlying HD Radio circuit itself," which they consider a commercially-unreasonable price.

According to the terms of the iBiquity/Continental agreement, iBiquity is paid at least $1 for every HD receiver Continental sells, though dependent on volume it can make as much as $6 per receiver; Continental claims it has been paying the higher rate all along.

iBiquity formally revoked Continental's license to manufacture HD Radio-compatible infotainment systems last November, when Continental suspended royalty payments, though the agreement between the two companies would have technically expired on June 28th of this year.

In a May 19th response to Continental's complaint, iBiquity came out swinging. It revealed that, "[m]ore than a month before Continental filed its federal complaint, iBiquity filed a breach of contract lawsuit against Continental in Maryland state court over the same license interpretation issue." Having sued first in the venue dictated in the terms of its license agreements (and where its headquarters is based), iBiquity moved for dismissal of Continental's federal case.

It also savaged Continental's patent arguments, declaring that HD Radio's business model has no "anticompetitive effect in a properly defined market," and asserted that legal precedent exists to base royalty payments for proprietary technology on an entire product and not just its parts. On June 12th, Continental replied, seeming most concerned about its potential liability for patent infringement should it keep manufacturing HD Radio receivers; iBiquity has called such a threat hypothetical.

Then last week, Continental filed a motion to withdraw elements of its lawsuit, which was granted on the first of July. Press coverage is surprisingly sparse, but the move suggests that both companies are focusing on iBiquity's lawsuit in Maryland. That case is in the discovery phase, with pretrial maneuverings scheduled to continue until the end of the year. Meanwhile, iBiquity still lists Continental on its web site as a licensed manufacturer "on the Receive Side of HD Radio Technology."

Continental Automotive Systems, a multi-billion dollar subsidiary of a German conglomerate, apparently thought it might be able to squeeze iBiquity, a corporate pipsqueak, on the licensing-payments for manufacturing HD Radio receivers. It's not an unusual gambit in the corporate obsession with cost minimization, and it might have saved Continental millions of dollars in future costs.

But the fine print is a bitch, and iBiquity needs those millions to survive. HD Radio's only real play is in the automotive realm, and had it been intimidated into accepting lower payments from a major receiver manufacturer, it sets a precedent that jeopardizes iBiquity's entire business model. More than anything, this case illustrates the continued reticence there is among receiver manufacturers to fully embrace HD Radio, while they rush headlong into the arms of those that compete with it in the glass dashboard.

The second federal court action involves a patent troll on the prowl. Late last year, this troll targeted broadcast and automotive licensees of HD Radio, claiming that the technology infringed on its intellectual property. Most notably, the troll did not sue iBiquity itself. The defendants in these suits managed to postpone action on the troll's claim three times—until July second.

One day before the deadline, iBiquity swooped into Delaware District Court and countersued for dismissal. The claim is simple: patent trolls are parasites with no meaningful claims to intellectual property. Most importantly, iBiquity claims to have ample evidence of the ambiguity and invalidity of the troll's patents (legally called "prior art"). Should iBiquity prevail, it will cut this particular patent troll off at the knees. Not surprisingly, the broadcaster-defendants, which now reads like a Who's Who of radio conglomerates, have emphatically endorsed iBiquity's play.

But truth be told, it's a surprise it took iBiquity so long to set up this smackdown. Its countersuit notes that "iBiquity has a contractual obligation" through its licensing agreements "to indemnify the Broadcasters and suppliers to the Car Manufacturers against any losses incurred as a result of being sued over their use of HD technology." This makes iBiquity an intervenor in 32 HD Radio-related cases filed so far by this particular patent troll.

In hindsight, it's easy to see how iBiquity might have been preoccupied by the Continental dispute. But now, it's willing to take this particular patent fight all the way to a jury if necessary.

These are not the first legal skirmishes for iBiquity when it comes to defending its business model. In 2007, iBiquity filed an amicus curiae brief with the U.S. Supreme Court in a case involving the structure of patent and licensing agreements. iBiquity's multi-level licensing process means everyone (broadcasters, receiver chip manufacturers, and receiver-makers) pays a licensing fee to sell or use the technology; iBiquity claimed then that its business model was successful because it allows the risk inherent in developing and adopting a new technology to be spread around to various players. Ultimately, iBiquity was on the losing side of that case, but its business model has remained intact.

HD Radio's enclosure has already stifled both innovation and uptake of the technology, and these legal maneuverings suggest that iBiquity's business model remains a significant drag on HD Radio's evolution. Money spent fending off patent-infringement claims and royalty disputes means fewer funds to invest in research, development, or promotion. Can the system afford such distractions?

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