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Law of Electronic Media: Concepts, Perspectives and Goals

Fall 1997


Introduction 2

Course Procedure 2

Information Age, Information Economy 3

First Amendment: The Reasons For, and Purposes and Effects Of 3

Electrical Engineering 4

New Paradigms and "Thinking Outside the Box" 5

Why "FCC Regulation of Broadcasting and Cable"? 5

Down-sizing, Out-sourcing, Entrepreneurship, Flat Organizations and the Virtual Corporation 6

The Billion-Dollar Bonanza 7

"You Want It, You Got It" 8

Orders of Magnitude and the "99.9%-Off Sale" 9

Technological Displacement and Broadside Blows 9

Globalization 10

Galloping Multi-Media Merger Mania 11

Information Rich, Information Poor 12

Telecommunications and Media Law as "Environmental Law" 12

Standards 12

Data, Information, Knowledge and Wisdom 13

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[Note: This document was originally prepared for a prior semester of Law of Electronic Media, somewhat different in focus from that of this, fall 1997, semester. There is much here, however, that will be helpful to students in understanding this semester's course as well. -- N.J.]

There are a number of goals or purposes for this course (e.g., (a) your substantive knowledge of relevant facts and law with (b) the "demystification" and self-confidence it brings about one more area of law, (c) the further development of your analytical, speaking and writing skills, and so forth). But one of those goals is for you to master some concepts or perspectives.

Rather than give you no option but to try to extract them from our discussion over the weeks of this semester, the headings/comments which follow will give you a preliminary heads up on what to look for.

(1) This memo is not a smooth-flowing essay. There is no "conclusion." It just stops (eventually!). Think of it as more like a glossary, or index. (2) Read it now, refer to it later. It will help you enormously to at least read this through before the first class period, and to come back to it throughout the semester. (3) I know that many of these concepts will be familiar to some or all of you already. So much the better. (4) Some will require no more than a minute or two of class time; others will be developed throughout the course. (5) This is only a listing with sometimes sketchy, sometimes illustrative, introductory annotation; it may be a useful reminder or checklist for you, but it is not all you need to know. (6) There is no necessary connection, or flow, between the headings below, with some obvious exceptions. (7) We will, undoubtedly, add to this list throughout the semester.

Course Procedure

Because I think it provides a better educational experience for you, we may innovate from time to time with the legal educational experience itself -- primarily modified-for-law-school ideas drawn from efforts to reform K-12 education by the Coalition of Essential Schools and others. ((a) You don't need to know what the Coalition is, but (b) I will explain it to you anyway, later.)

So your first new concept involves something as fundamental as the educational process itself.

It will help you throughout the semester to know that this is going on. Here are a couple of examples.


Information Age, Information Economy

This concept runs throughout the course, from the first evening to the last. You will need to "get it" as an idea. Because there are hundreds of implications of this concept, not to mention examples, be patient with yourself as you flesh it out. It will take awhile. But nothing could be more "practical" for you, because we are going to be exploring and talking about the world in which you will be living and working (2000-2050). That world is/will be as different from the industrial, commercial age (which has, so far, shaped most of the law you've studied) as the industrial age was from the 10,000 years of the agricultural age which preceded it.

Wealth and power, once measured in terms of land, or factories, or other physical capital assets, are now primarily measured in "information" most broadly defined (e.g., a credit bureau's records, vaults of feature films, your legal education).

You will want to begin thinking in terms of categories of information age (a) hardware, (b) software and (c) services -- along with lots of examples of each -- as well as the legal and public policies they may raise.

Categories of legal, or public policy, issues could include copyright (e.g., the difficulties of policing abuses made possible with relatively cheap consumer electronics), privacy (e.g., the ease of intrusion with enormous, cross-referenced data bases of information on all of us, or miniaturized audio and video recorders), and antitrust (e.g., the implications of Microsoft's offering of an online service from within the Windows 95 operating system).

First Amendment: The Reasons For, and Purposes and Effects Of

You have probably studied some First Amendment law by now. (If you haven't, don't worry, you can quickly catch up with what you need to know for purposes of this course.) But many of


the courts' opinions are of little use to us when dealing with the new technologies. There is usually a reasonable basis for pointing out why those decisions analyses are, and ought to be, inapplicable. What to do? Go back to basics. What were we trying to accomplish with the First Amendment in the first place? If we focus on those reasons, purposes and effects (in addition to the literal language and prior holdings) it may provide us a more useful guiding star in designing public policy and law for an information age.

Electrical Engineering

Don't panic. I know you don't like math and science. After all, that's one of the reasons you chose law school as your alternative to "do you want fries with that?" But anyone who's been accepted into this law school is fully capable of dealing with the modest EE concepts needed for this course.

One of the delightful side benefits of studying "law," as I'm sure you've discovered by now, is the wonderful way in which the fact statements in appellate court opinions necessarily introduce you to real-world knowledge about an incredible array of different human activities. (It doesn't stop at graduation. During the course of my professional lifetime I've had to learn enough to function within the airline, broadcasting, cement, communications satellite, computer, natural gas, oil, ship building, shipping, telephone, and under-ocean cable industries -- among others. You develop the skills of a "quick study"; not mastery of detail, but enough to know what you don't know, ask intelligent questions, and knowledge of where, and whom, to go for answers.)

Law of Electronic Media is no different.

Other examples (from dozens) where modest technological insight is necessary to understand the practical problems and legal solutions we will be talking about might include:


New Paradigms and "Thinking Outside the Box"

This course will require that you develop (if you have not already done so) the capacity for coming up with new ways of thinking. I don't mean by this some one new way of thinking that I know about, and you don't, but that I'm going to teach you. I mean you developing your ability to identify legal problems, and solutions, that no one (including me) has ever thought of before; new combinations of electronic hardware, software or services; new structures of global governance.

This is not only an approach to social reform, but also to great personal wealth.

This will require some real work on the part of all of us, but can pay great rewards of every kind. If you've studied cultural anthropology, or mastered a foreign language, you may draw some useful analogies from that experience in comprehending what we mean by "new paradigms." But don't let this one throw you; we'll walk through it together.

Why "FCC Regulation of Broadcasting and Cable"?

With all this emphasis on innovation and new paradigms, why are we studying old technologies like broadcasting and cable?

There are a couple of reasons.

First, broadcasting is still with us. It has changed in a variety of ways since the 1910s and 1920s in terms of technology, economics and regulation -- some of which have been hinted at above,


and others of which we will also explore.

But broadcasting, in its current form, is still with us. And so is the FCC.

And my prediction is that it will still be with us, albeit in its future form, when you are getting ready to retire from the practice of law around the year 2050.

So you need to know something about broadcasting and cable, and its regulation by the FCC (such as it is!), because it is eminently practical, something you will use, and a part of your understanding of the "Law of Electronic Media."

Second, and beyond that, however, is its utility to us as analogy, as model. The federal, regulatory, administrative agency, is one way of thinking about the legal and public policy issues raised by the new electronics technologies, software and services. (The public utility, common carrier, model is another. The "unregulated" (quotes because virtually every industry is regulated in some way) marketplace is a third, and currently the most popular, model.)

Down-sizing, Out-sourcing, Entrepreneurship, Flat Organizations and the Virtual Corporation

In late 1995 ATT announced it was offering early retirement to over 70,000 executives -- to repeat, not industrial line workers, but executives! (It's Happy New Year message to all employees was that 40,000 workers would be fired during 1996.) What's going on? Is ATT going out of business? No, it's doing quite well, thank you.

What's going on is but one example of the kind of paradigm shift just mentioned. Many of you will find yourselves doing quite well during the 21st Century -- personally, professionally, and economically. But you will be "unemployed" by today's standards, because you "can't get a job."

"Getting a job" is no longer the goal -- at least not one likely to be attained (or, if attained, retained).

For a variety of reasons, many of them having to do with the information revolution, it is no longer necessary for large organizations (whether "government" or "corporate") to have "employees" in today's sense -- or at least to have as many of them as they once would.


One of the primary reasons is that organizations often find it cheaper and easier to "out-source" goods and services (such as, say, the copy and printing operation) than to put "employees" on the payroll, with all the costs associated with recruiting, training, and benefits. This is even the case when they end up contracting out to precisely the same individuals who were formerly performing that function as "employees."

"Flat" organizations are those in which authority is transferred to the field, or the factory floor, where quality employees are capable of organizing and supervising the work themselves.

The ultimate "virtual corporation" would be a single CEO with no "employees" whatsoever: contracting out the manufacturing, legal, administrative and other functions to other individuals and organizations paid as contractors.

How do you support yourself in such an economy? Through entrepreneurship. You are perceptive enough to discover an unfulfilled need, and then develop such a high degree of legal knowledge and skills, which you constantly upgrade to stay ahead of the curve of competition, that this newly discovered "niche" virtually belongs to you.

In the context of a law firm, just one brief example:

Rather than "getting a job" with a large firm that puts you in the group of lawyers working on that specialization, you operate a boutique of a law firm that becomes so highly regarded as "lawyers' lawyers" that you end up servicing large firms all around the country.

Or, in business:

Rather than "getting a job" in the legal department of a Fortune 500 firm, you either come up with ideas for new, innovative information economy firms yourself or join with those who do by, say, providing them the start-up legal services they need in exchange for stock.

The Billion-Dollar Bonanza

So let's practice a little entrepreneurship.

A cousin of mine, when president of a bank in Houston, was approached by a reporter from out of town who wanted to do a story about all the millionaires in Houston, and asked for their names. My cousin explained that he couldn't possibly come up with the names of all the millionaires, but that if the reporter wanted to limit himself to billionaires he might be able to provide that list. (And this was decades ago, when a billion dollars really was a lot of money!)


Similarly, in this class, we don't have time to talk about all the multi-million-dollar ideas, but we can talk about a few of the available "billion-dollar bonanzas." In fact, one of your assignments will be to come up with one.

The ground rules are that this not only will not, but cannot, require any genuine invention on your part. It's just "putting the stereo components together." Want an example?

There's a billion-dollar idea in the papers at least once a week -- if you know how to look for it, have the imagination to "get it," and the courage to go for it.

"You Want It, You Got It"

Virtually any electronics you can imagine probably already either exists, or could be invented by a creative inventor or engineer in 18 months or less (the period of time it takes them to double the computational capacity of computer chips).

This is both good news and bad news. The good news is that you have an almost unlimited range of possibilities for your billion-dollar bonanza.

The bad news is that just because something can be invented does not mean that anyone will want it. For example, media conglomerates have already lost millions, if not billions, on "interactive TV."

As any candid educator will acknowledge, it took us 50 years to get the overhead projector out of the bowling alley and into the classroom. Seventy years after the New Haven telephone exchange was up and running no more than 50% of U.S. homes had a telephone. Why is it you think your technology will be adopted sooner?

"Wow!" and "Gee whiz!" carry a lot of weight with hobbyists, like myself, who want one of everything electronic. The fact that it can be done means that we want to do it. It carries far less


weight in the marketplace among those who are just looking for goods and services to help them get the day's work done.

Orders of Magnitude and the "99.9%-Off Sale"

Another example of a new paradigm, of sufficient significance that I am listing it separately, is the application of the concept of "orders of magnitude" to electronics.

Orders of magnitude, by contrast, refer to numbers that are multiples of ten more, or less, than others.

Such "orders of magnitude" reductions in price, or increases in power (of, say, computers), require a radical reordering of the ways we think about such things.

When items priced, and designed, as industrial products for the military, or Fortune 500 companies, suddenly become relatively cheap "consumer electronics," it can have enormous social, political, economic -- and legal -- implications. That will be one of the sources of the issues you will be looking for, and then thinking, researching and writing about.

Technological Displacement and Broadside Blows

Of course, the other side of the "billion-dollar bonanza" coin is the billion-dollar bankruptcy.


What does your radar pick up on the distant horizon as a possible threat to your billion-dollar bonanza?


By now, virtually everyone is aware that we are operating in a "global economy."


Much of what has made this possible, and continues to propel it, is the existence of global communications networks (under-ocean optic fiber and other cables, and communication satellite networks).

You, too, will need to "think globally."

Galloping Multi-Media Merger Mania

When Time and Warner merged (to make "Time Warner") the executives explained their reason: there would soon be five firms controlling all the media on planet earth, and they wanted to end up among the five.

GE had earlier acquired NBC, and Cap Cities bought ABC. Since the Time Warner merger, Disney has acquired Cap Cities-ABC and Westinghouse bought CBS.

It is not yet the case that five firms control all the world's media. But that time is not far off. There are already, not five, but six firms that control not all, but over 90%, not of the world's media, but of its commercial music.

The implications of media ownership patterns are in part economic -- the subject of conventional "antitrust" considerations.

But the far greater significance (from my perspective) are the implications for the First Amendment (see "First Amendment: The Reasons For, and Purposes and Effects Of," above), the opportunities for a diversity of (often unpopular) information and ideas to reach a democratic, self-governing society, and the ability of the media to challenge establishment institutions of all kinds (corporate as well as governmental).

In addition to the risks posed by (a) a local monopoly, or oligopoly, of media outlets, look for, and think about the risks of, (b) state-wide, or regional concentrations, (c) group ownership (of large numbers of, say, only newspapers, or only broadcasting properties), (d) multi-media ownership (whatever the geographical region, from local to global), where one owner combines control over newspapers, magazines, and books, radio and television program production, and


stations, cable television programming services and the local systems that carry that programming, movie studios and theaters, music companies, video rental stores, and so forth, (e) conglomerates' ownership of media (a major defense contractor, say, owning a TV network).

Information Rich, Information Poor

If it is true, as asserted above, that wealth and power are today measured in terms of access to communications/information, and that this information economy is networked globally, what are the implications for the equitable distribution of that wealth and power among the world's peoples?

Is it possible that, just as there is an economic gap between "the rich" and "the poor," there is a gap between the "information rich" and "information poor" as well? If so, is that gap decreasing -- as advocates of the "global village" would have us believe -- or increasing?

For starters, every year there are more illiterate people on planet earth than there were the year before. Most of the world's people live on less than $200 a year. Some ten million children under age five die every year from impure water (a loss that could be prevented, incidentally, with an expenditure of less than ten cents per child per day). Food, health, and escape from war, are -- quite understandably -- higher priorities for them than a phone (even if the service were available), not to mention a home computer connected to the Internet.

Does this gap exist in the U.S. as well? Are these issues of significance to us in a law school course on the "Law of Electronic Media"? Should they be?

Telecommunications and Media Law as "Environmental Law"

We used to live in an environment made up of a few small clusters of civilization surrounded by natural wilds. Now we live in an environment made up of a few "tree museums" (to borrow from Joni Mitchell) surrounded by civilization.

Today's "environment" is something which we have made -- into our "mediated, virtual reality." National parks, amusement parks, and video arcades are seen as interchangeable ways of allocating our time and money. We explore the oceans and forests and mountaintops by watching a TV, or computer, screen rather than taking a walk around the neighborhood.

Thus, telecommunications and media law have become, for the human species, the most important subset of environmental law. What are the implications of that insight for this course?


Without standards not only do the railroads not run on time, they don't even run on tracks.


What is the relationship between the technology, timing, politics, economics, law and public policy of standards setting -- especially those involving the technologies upon which you are concentrating?

Data, Information, Knowledge and Wisdom

Throughout this document I have referred to "information" as a catch-all for everything from airline schedules to feature films. It's just easier to do it that way.

But you will want to be at least generally aware of the concepts "data," "information," "knowledge," and "wisdom" -- though we will probably not explore these philosophical distinctions in depth.

An example:


"Data," "information," "knowledge," and "wisdom." Useful distinctions to keep in mind as we consider the legal and public policy implications of "the information age." And may this course provide for you at least some of "the greatest of these," which is wisdom.

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