Mass Comm Law Exam 4

Terms in this set (23)

Define and Explain the Lanham Act:
a.) Adopted more than 60 years ago by Congress to stop unfair competition in the marketplace. Section 43 creates a legal cause of action for false advertising... any person who generates false ads is liable for civil damages. Law prohibits making false claims about your product (Escalade gets 60 mpg) and also about a competitors product (Hybrid only gets 2 mpg) GOAL of act is to protect competitors from unfair competition.
b.) Basically 3 parts in the Lanham Act False Advertising Test?
1.) What message, either explicitly or implicitly, does the ad convey?
2.) Is the message false or misleading?
3.) Does the message injure the plaintiff? (What does a plaintiff try to obtain from suing under the act?)
i.) Traditionally only sought to stop the false claims and not to seek monetary awards because it was difficult to prove the exact monetary value lost BUT recent courts have changed this. Making monetary awards easier to prove and obtain - now they can win actual damages and court costs and top into any profits made by the false ad campaign. Judges can also double or triple the award in cases of flagrant falsity.
ii.) Rise of Competitor v. Competitor lawsuits. Lanham Act does not protect consumers. What Does protect consumers?
a.) Can-Spam-Act: Cannot spam people under false pretenses in email. Example, send span and put "Happy New Year" in from or subject box.
b.) Magnuson-Moss Warranty Federal Trade Commission Improvement Act. - enlarged power and jurisdiction of FTC. Expanded power from "in commerce" to "affecting commerce".
c.) National Do Not Call Registry List
d.) The "Little FTC Acts" - States use the federal FTC acts as guidelines for state laws to prevent false ads.
e.) JunkFax prevention
g.) Wheeler-Lea Amendment to the Trade Commission Act, gave power to FTC to stop all unfair and deceptive acts or practices regardless if they affect competition or not.
Know 2 of the regulations the federal government abandoned over the years as the marketplace model took over.
1.) The idea that the broadcasting stations must serve the public. Idea of serving the interests of the market grew over the notion of serving the needs of the public. Giving viewers what they wanted to see/watch instead of giving government the power to control what viewers could watch.
2.) Rules requiring broadcasters/reporters all sides of important public controversies in their community... the so called "fairness doctrine"
3.) The Prometheus Decision!!! and the national television rule
4.) Prometheus Radio Project v FCC - The Prometheus Decision - Affirmed the power of the FCC to regulate media ownership, the Court held that "the Commission has not sufficiently justified its particular chosen numerical limits for local TV ownership, local radio ownership, and cross-ownership of media with local markets." Said while FCC has the authority to repeal a ban that prohibits a common ownership of a full service TV broadcast station and a daily public newspaper in the same media community, the numerical limits that the FCC adopted were not sufficiently justified by the FCC. Court told the FCC to come up with additional justification of the relaxed media ownership rules or to modify them. The relaxed rule from 2003 would let a conglomerate own 8 radio stations, 3 TV stations and 4 newspapers (just a lot of news organizations) in the same region but this decision is still on hold until the FCC provides more justification The Prometheus decision made so that a media media conglomerate couldn't hold more than 39% of the national TV news stations, "national audience reach" but there is no limit on the number of radio stations one can own.
5.) National Television Ownership Rule
a.) "A single entity may own any number of television stations on a nationwide basis as long as the station group collectively reaches no more than 39% of the total national TV viewing audience.
Obscenity v Indecency - the difference by first amendment standards.
1.) Obscenity is NOT protected; Indecency IS protected.
a.) The broadcast of obscenity over TV or radio is illegal. It is also illegal to broadcast indecent material over radio and TV unless the TV is on a cable station.
b.) In 2006 a change was made. Fine for airing indecent material shown by broadcasters from $32,500 to $325,000.
c.) The Miller Standard - rule to test for obscenity (SLAAP Test)
i.) Local - Meet community standards
ii.) Sexual conduct is applicable to state law. What is offensive in that state "Patently Offensive"
iii.) Use SLAAPs Test: Serious, Literary, Artistic, Political or Scientific Value
d.) The book defines indecent speech as, "language that describes in patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times when there is a reasonable risk children may be in the audience."
2.) Broadcast indecency currently only focuses on sexual or excretory organs or activities not on violent images or story lines.
3.) Safe Harbor - the rule that between 10 pm - 6 am kinds aren't supposed to be viewing TV so obscene or indecent shows are put on during that time. (In order to change viewing a complaint must be made)
4.) Golden Globe/Bono Award - fleeting expletives... what's your stance?
a.) Go over this for case problem!!!!
b.) Agree with FOX TV that fleeting expletives should be allowed. Use Fox TV (What is patently offensive)
i.) Vagueness - void of vagueness, what is vague (define) what is offensive?
ii.) Goes against 1st Amendment
a.) CBS v FCC doesn't give reasoned explained (what's the appellate court doing?) (complete departure)
iii.) Fleeting expletives does not meet the certain criteria of what is indecent. Doesn't meet the FCC definition of indecency.
a.) Sexual or excretory (the words)
b.) Community broadcast medium
iv) Patently offensive (Obscene)
a.) Sexual or excretory
b.) Dwells or repeats (repetition)
c.) Shock, Titillate, or Pander (CBS v FCC, Fox v FCC)