Wednesday, June 30, 2010

Why the Supreme Court's Decision in Rent-a-Center v. Jackson Matters

On Monday, June 21, 2010, in a 5-to-4 decision the U.S. Supreme Court sided with Rent-A-Center management in an decision that is a win for employers who want to resolve disputes with employees through the use of a company arbitrator, and not a court.

The Court ruled against the employee, Antonio Jackson, on the enforceability of an arbitration agreement between the company and the employee, who had filed an employment discrimination suit. Jackson argued that the binding arbitration provision was unconscionable because he would not have been hired without signing the agreement.

Antonio Jackson alleged race discrimination and retaliation on the part of his former employer, Rent-a-Center West, Inc. (RAC). RAC said the complaint must be resolved via forced arbitration, per the arbitration contract Jackson signed when hired. Jackson argued that the forced arbitration clause was unconscionable, and that the issue of unconscionablity must be decided by a court, rather than an arbitrator. He says the agreement is unconscionable because:

It contains one-sided coverage and discovery provisions.

It mandates that the arbitrator’s fee is to be equally shared by the parties (with no fee cap, meaning RAC could drag the arbitration out indefinitely and make it prohibitively expensive for the plaintiff).

The form contract was presented to him as a non-negotiable condition of his employment.

In holding against Jackson, the five-justice majority reinstated a ruling from a Nevada federal court judge that had been reversed by the U.S. Court of Appeals for the Ninth Circuit.

Writing for the majority, Justice Antonin Scalia reasoned that so long as an arbitration agreement delegates the decision regarding unfairness to the arbitrator, it should be the arbitrator rather than the court who decides whether an arbitration clause is unconscionable.

The case was argued before the Court for Rent-A-Center by Rob Friedman of the Littler law firm. "We are pleased with the Court's decision," said Dwight Dumler, Rent-A-Center senior vice president of public affairs. "The decision is consistent with the holdings of the majority of the circuit courts that have addressed the question. The Court's ruling keeps arbitration the efficient and cost effective process it was intended to be."

Jackson was defended by the Hardy Law Group of Reno, Nevada, and Public Justice of Washington, D.C. Oral argument was presented by Ian Silverberg of the Hardy Law Group.
Dissenting Justice Stevens wrote that the result made no sense. If the arbitration agreement is “so one-sided and the process of its making so unfair” then it was unreasonable to assume Jackson truly assented to put that very question to the arbitrator", Stevens wrote.

The decision is already drawing flak from liberal groups and lawmakers, who contend it will stack the scales in favor of corporations. In a statement, Senate Judiciary Committee Chairman Patrick Leahy said, “five members of the Supreme Court struck a blow to our nation’s civil rights laws and the protections that American workers have long enjoyed under those laws.”

Until this Supreme Court decision, consumers and employees had the right, under Section 2 of the Federal Arbitration Act, to go to court and ask a judge to find an arbitration agreement unconscionable or unfair and therefore unenforceable. Although most arbitration agreements are enforceable, court review weeded out the very worst abuses—like imposing exorbitant fees, forcing consumers or employees to travel great distances to arbitrate, or allowing a corporation to pick an arbitrator that is clearly biased in its favor.

This Supreme Court decision will leave many challenges to the fairness of a corporate arbitration system entirely in the hands of corporate arbitrators themselves. Nothing will stop companies from inserting clauses like the kind approved by today’s decision into standard-form arbitration agreements. Companies would then be free to impose one-sided terms or select clearly biased arbitrators with close ties to the company, secure in the knowledge that any challenge to the fairness of arbitration will be decided by the arbitrator whose very authority comes from the challenged arbitration agreement.

This decision will spur efforts in Congress to pass the Arbitration Fairness Act (H.R. 1020, S. 931), a measure that would ensure that any decision to arbitrate in a consumer, employment, or franchise dispute is made voluntarily and after a dispute has arisen, so that corporations cannot take advantage of their unfair bargaining power to force individuals into arbitration.

American Association for Justice (AAJ) President Anthony Tarricone commented; “The Supreme Court today gave corporations yet another free pass to submit employees and consumers to abusive forced arbitration proceedings. Corporations now have nearly unchecked authority to write, enforce and judge the fairness of their own forced arbitration clauses. The fox is guarding the hen house – at the expense of citizens’ access to the civil justice system. It is imperative that Congress pass the Arbitration Fairness Act (S. 931 / H.R. 1020), which would protect consumers and employees from these abusive practices.”

Here are three examples of unconscionability challenges that AAJ says could be adversely affected by this ruling:
If an individual wants to challenge that the arbitrator chosen by the company is unfairly biased toward that company, this ruling could mean the same arbitrators would decide whether they are biased.

If an individual wants to challenge the fairness of having to fly across the country for the arbitration, this ruling could dictate that he fly across the country to challenge whether it’s unfair to have to fly across the country.

If an individual wants to challenge the fairness of having to pay excessive costs for the arbitration, this ruling could require her to pay for the arbitration to ask the arbitrators whether the fee is unfair.

As the world's largest trial bar, the American Association for Justice (formerly known as the Association of Trial Lawyers of America) works to make sure people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others—even when it means taking on the most powerful corporations.

Analysis of Rent-A-Center v. Jackson By David Gans

On June 21, 2010, the Supreme Court handed down its ruling in Rent-a-Center v. Jackson to a near-deafening silence.

The case generated very little media coverage, drowned out by continuing coverage of the oil spill and coverage of other rulings by the Court and limited, perhaps, by the density of Justice Scalia’s majority opinion, which seems designed to make the case appear complicated, technical and narrow.

But Rent-a-Center is extremely important, and its holding will likely affect thousands of Americans, another ruling in a long campaign by corporations to supplant judicial review with arbitration.

In Rent-a-Center, in a sharply divided 5-4 ruling, the conservative majority of the Supreme Court reached out to create a new rule of pleading that makes it difficult for hard-working Americans to seek justice in the federal courts to enforce their federal rights, including the right to be free of racial discrimination in employment.

Citing the arbitration agreement Antonio Jackson was forced to sign as a condition of being hired by Rent-a-Center, Justice Scalia’s opinion for the Court’s five conservatives held that Jackson’s civil rights lawsuit could not be heard in federal court. Jackson’s claims, including his challenge to being forced to arbitrate his civil rights claim, could only be decided by a private Rent-A-Center arbitrator.

Justice Scalia’s opinion for the Court invents a new pleading rule – one urged by neither party in the litigation – to keep Jackson out of federal court.

Parsing Jackson’s briefs, Justice Scalia finds fault with Jackson’s lawyers for attacking the validity of the entire forced arbitration agreement as unconscionable, rather than the particular provision of the agreement that gave the arbitrator the power to resolve challenges to the arbitration agreement.

Because Jackson’s lawyers brought the wrong claim, Jackson loses.

This looks largely like nitpicking – and it is – but something far more serious is afoot. Justice Scalia’s opinion raises dramatically the burden on workers and other Americans across the country who are subject to forced arbitration.

Justice Scalia rejects the idea that Jackson is entitled to seek justice in federal court if he can show that the arbitration agreement, in its totality, was an unfair, one-sided deal that the company forced on him as the price of getting a job. That’s the challenge that Jackson’s lawyers brought, and the Court rejected.

It’s never going to be easy for an employee to show that an arbitration agreement is unconscionable, and the Court’s ruling makes that burden a great deal heavier by refusing to look at the arbitration agreement as a whole.

In Jackson’s case, for example, the Court treated it as irrelevant that the arbitration agreement was manifestly one-sided, only covering claims an employee might bring against the employer, while exempting those claims that Rent-a-Center might raise, and imposing sharp limits on an employee’s ability to gather evidence. The net result – which Justice Scalia basically concedes – is that the Court’s newly minted pleading rule will make it harder for employees to seek justice in federal court.

The Court’s holding turns on its head our constitutional tradition of access to the courts, and effectively relegates hard-working Americans like Antonio Jackson to arbitration proceedings that, all too often, are structurally biased to favor large corporations. The problem here was not the law – as Justice Stevens showed in another powerful dissent, nothing in the Federal Arbitration Act, its history, or the Court’s precedents, remotely compelled this result – it was the five conservative Justices in the majority. In fact, the Justices had already recognized that a plaintiff was entitled to bring suit in federal court notwithstanding an arbitration agreement if he or she had been forced to go to arbitration as part of an unconscionable bargain.

Justice Scalia’s opinion in Rent-a-Center changed the rules to make it much harder for Americans subject to an arbitration agreement to make this showing. With millions of Americans forced to arbitrate their claims – whether by their employers, cell phone or credit card companies – it is hard to miss the obvious fact that shutting the courthouse doors to plaintiffs like Antonio Jackson will have a lasting effect on access to justice for men and women across the country.

David Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center. CAC joined an amicus brief in Jackson, emphasizing that forced arbitration of civil rights claims runs counter to the text and history of the Reconstruction-era civil rights statute at issue, which was written to give Americans a right of access to federal courts.

Black Coalition Objects To Comcast-NBCU Merger

Radio/TV Business Report: The National Coalition of African American Owned Media is charging that despite the fact Comcast operates in many markets with high concentrations of African Americans, it does not offer a single cable channel that is 100% owned by African Americans.

Not only does the group oppose Comcast’s proposed merger with NBCU, it says it will encourage boycotting the service. NCAAOM is employing the services of former FCC Chair Kevin Martin to make its case, as is financial journalism outfit Bloomberg.

Stanley E. Washington, NCAAOM President & CEO stated, “The time has come for Comcast to know that African Americans will no longer live on the Comcast plantation. Comcast must immediately do business with African American owned media in a significant way. Until they do so, we're continuing to boycott and actively campaign to have African American families and our supporters disconnect Comcast services.”

NCAAOM says that the African-American content that is carried is not wholly owned by minorities, citing BET, owned by Viacom, and Radio One’s TV One, in which Comcast has a 33% stake.
Washington estimates that African Americans contribute $15B in revenue to Comcast annually, and said they are present in strength in many important Comcast markets.

“For example, in Philadelphia --- the city in which Comcast is headquartered --- African Americans make up more than 43% of the city's population.

A little more than half of all residents of Washington D.C. are African American.

In Detroit, 8 out of 10 residents are African American.

Other Comcast markets with high concentrations of African American subscribers include: Atlanta, Baltimore, Birmingham, Chicago, Jackson MS, Memphis, New Orleans, Oakland CA, Pittsburgh, Raleigh-Durham and many more.

Washington said that between them, Comcast and NBCU will have 44 O&O cable networks, with more probably on the way, and he suspects that efforts to include them in a typical local system’s channel lineup will even further choke out independent channels, including those 100% owned by African Americans.

Tribune Says It Will “blow-up” The TV Playbook

Tribune Broadcasting declared that it is “taking the lead in the reinvention of local television,” announcing that it will “blow-up” the traditional TV playbook.

The first phase includes restructuring the creative service functions at its television stations and appointing two regional vice presidents for innovation and imagination.

John Zeigler, formerly director/creative services for WPIX-TV in New York, will lead the eastern region; Carrie King, previously director/creative services for WGN America, will lead the central region. The regional vice president position for the western division remains open and a search is ongoing. It will be filled soon by someone who “gets it as much as Zeigler and King do,” the company said.

“Incremental change at our television stations won’t get it done,” said Lee Abrams, Tribune’s chief innovation officer. “We have to be radically and noticeably different — we have to imagine TV and TV news in a totally new way, one that breaks through and reinvents the decades old, tired TV playbook,” he declared.

What will change? Zeigler and King will establish and implement dramatically new creative standards and promotional emphasis for the television stations within their respective regions. They’re charged with driving a look, feel and sound reflecting the highest levels of creative reinvention both on the air and on the street, inspiring and motivating stations to take risks and execute in 21st Century terms, the company said in announcing that “The TV revolution is underway at the new Tribune.”

“This opportunity was meant for John and Carrie and they earned it. They have demonstrated a clear and passionate understanding of our new and very different vision and have consistently executed and delivered on it. They are essential to developing a new style of television and leading our stations into the future,” said Jerry Kersting, president of Tribune Broadcasting.

The eastern division includes Hartford, Harrisburg, New York, Philadelphia, South Florida and Washington, DC. The central division is made up of Chicago, Dallas, Grand Rapids, Indianapolis, Houston and New Orleans, and also includes WGN America.

TRIBUNE is one of the country's leading multimedia companies, operating businesses in publishing, interactive and broadcasting. In publishing, Tribune's leading daily newspapers include the Los Angeles Times, Chicago Tribune, The Baltimore Sun, Sun Sentinel (South Florida), Orlando Sentinel, Hartford Courant, The Morning Call and Daily Press. The company's broadcasting group operates 23 television stations, WGN America on national cable and Chicago's WGN-AM. Popular news and information websites complement Tribune's print and broadcast properties and extend the company's nationwide audience. At Tribune we take what we do seriously and with a great deal of pride. We also value the creative spirit and nurture a corporate culture that doesn't take itself too seriously.

SOURCE Tribune Company

Broadcast Union News: The last time Tribune said they were going to "blow up the traditional TV playbook", they changed the WPIX logo from red to blue. If Tribune is investing all the financial resources that remain after paying $70 million dollars in executive bonuses in consolidating their transmission facilities; automating their newsrooms, reducing the number of creative people generating ideas from nine people to one; getting all the news footage from LNS, so their content is pretty much identical what is airing on every other station; and eliminating as many people as possible to reduce operating costs; there aren't going to be enough people nor resources left to reinvent anything. -BD

Saturday, June 26, 2010

FCC Gives The Go-ahead For Small Market TV Combo

RBR-TVBR: Nothing succeeds like failure when trying to create a television duopoly pairing in a market generally too small to support such a combination.

The FCC is allowing Terry London to combine a CW affiliate with its CBS outlet in the Tyler-Longview TX DMA. The request failed to attract any objections. London Broadcasting Company Inc. is seeking to buy the station for a total 948K, with an SSA in place until closing. The seller is Charles Chatelain’s Estes Broadcasting Inc. London is taking on more of a financial burden than just the purchase price. The additional investment of an estimated $470K will be necessary to get the station’s digital facilities up and running.

The FCC found that KCEB easily qualified as a failing station, lacking both a substantial audience and positive net income. It also noted that London was the only buyer to come forward, that London promised to improve the station’s local programming, and that absent the deal, the station would likely go dark.On top of that, there was absence of any objections.

The FCC decided that the grant of a failed station waiver was in the public interest.

Broadcast Union News: The public interest is never served by reducing the number of independent, diverse voices providing news coverage. We all need to pay better attention. - BD

RBR and TVBR moves consistently through the maze of news to bring you relevant and useful information. Setting RBR & TVBR apart from the rest of the media world is their infamous RBR & TVBR Observations of that relevant content-giving an unbiased analysis that no other trade publication can offer. is the most unique, accurate and consistently updated website in the broadcast medium today, as it is fully interactive--the hub of all their publishing brands.

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Friday, June 25, 2010

Univision Creates Local Media Unit

By Katy Bachman
Media Week

Spanish-language media powerhouse Univision Communications announced late Thursday (June 24) the creation of Univision Local Media, joining the industry trend to leverage radio, TV and interactive media in local markets. To lead the new group, Univision named former Tribune exec Peter Walker as president.

Univision has named Peter Walker (pictured) as president of the unit.

Local media, close to the point of purchase, have begun to take center-stage with companies that own both radio and TV in local markets, such as NBC Local Media, Cox Media and CBS Local Media. While Univision may not be the first, the company offers unprecedented reach among Hispanics in 16 of the top 25 Hispanic markets, plus Puerto Rico.

In his new position based in New York, Walker will oversee the realignment of all operations and sales for Univision's 63 TV stations, 68 radio stations and local interactive properties. He will work with David Lawenda, president of advertising sales and marketing, to coordinate local and national sales, and with Alina Falcon, president of Univision News, to streamline local programming.

"Organizing all aspects of our local operations under Univision Local Media will enable us to provide seamless service to our local advertisers, identify new ways to grow our relationships with our clients and partners, and leverage our local programming and content across the company's platforms to enhance our local offerings for our audience," said Joe Uva, president and CEO of Univision, to whom Walker reports.

With the announcement of Univision Local Media, the company also announced that Joanne Lynch, president of the Univision Television Station Group, will retire in August after a 20-year run with the company.

Subscribe to Mediaweek

Bankruptcy for Tribune Gets Hung Up by Squabbles

The Wall Street Journal

Bankruptcy has been a surprising breeze for a number of companies that sought protection from creditors over the past two years.

But 18 months in, one case remains stymied in squabbling over just how the company landed in bankruptcy in the first place. That is Tribune Co., the ailing media company that was taken private in 2007 with an $8.2 billion deal by real-estate investor Sam Zell. Today, the transaction continues to haunt the company, its management and creditors.

A group of creditors holding Tribune's bank debt is threatening to upend the newspaper-and-television station owner's plans to exit from bankruptcy later this summer. Separate lender groups are deposing Mr. Zell and James B. Lee, a top banker at J.P. Morgan Chase & Co., which backed the buyout.

Also, a court-appointed examiner probing Mr. Zell's buyout for possible fraud could give ammunition to creditors of all stripes to battle Tribune's restructuring plans.

Tribune seemed to be in the final lap of its sojourn through bankruptcy court when it reached a settlement in April with investors who hold the company's bonds. The bondholders had threatened legal action, claiming the company's banks doomed it to collapse by financing the buyout with unsustainable debt. Each side feared the outcome of a trial would be too uncertain and costly and agreed to a d├ętente they deemed "fair and reasonable."

But instead of whisking Tribune through court, the settlement has drawn fire from a group of investors holding some of the firm's bank loans that are the first in line to be repaid. The dissident lenders, led by Oaktree Capital Management, are grousing that holders of bank debt are unfairly paying more than $400 million to bondholders, while Mr. Zell and the buyout's original backers contribute nothing. They complain that the settlement at the same time insulates Mr. Zell and his backers from litigation related to the buyout.

The dissident lenders have emerged as the most significant hurdle to Tribune's efforts to exit from bankruptcy and start anew. Further litigation by Oaktree and its allies could prolong Tribune's stay in bankruptcy court, depending on their ability to forge a coalition that could vote against the company's restructuring plan.

The publisher of newspapers including the Chicago Tribune and the Los Angeles Times has languished in bankruptcy, compared with other corporate casualties of the financial crisis that have sped through court. Small-business lender CIT Group Inc. neared collapse last summer, then later filed a prepackaged bankruptcy from which it exited in 40 days. Detroit auto makers General Motors and Chrysler used bankruptcy sales to restructure in less than two months.
During Tribune's much longer slog, the company's financial performance has continued to slip.

Operating cash flow fell 37% to $494 million in 2009, according to court filings.

Tribune's trip through bankruptcy has left employees, advertisers and vendors in limbo. Mr. Zell himself stepped down as chief executive and has refocused on real-estate deals, leaving his ill-fated media venture behind.

A Tribune representative declined to comment on the bankruptcy proceedings.
To a certain extent, the Oaktree group's fight is emblematic of bluster from creditors who typically angle for incremental gains in bankruptcy court. Whether the Oaktree lenders will succeed in blocking Tribune's restructuring is far from assured.

Investors holding some of the largest amounts of Tribune's bank debt—including J.P. Morgan, Bank of America Corp.'s Merrill Lynch, Angelo, Gordon & Co. and Avenue Capital Group—support the company's settlement and restructuring plan, leaving fewer influential creditors for Oaktree to rally to its cause.
The Oaktree group's momentum has slowed recently: The dissident lenders hold about $2.3 billion of Tribune's bank debt, according to the most recent court filings, down from $3.6 billion in April.

Still, the Oaktree group, if it holds together, remains in striking distance of blocking Tribune's bankruptcy plan, holding about a quarter of Tribune's bank debt. To exit from court, Tribune needs creditors holding roughly two-thirds of its $8.7 billion in bank debt to approve the company's current deal, meaning a coalition holding one-third of the debt could scuttle the company's plans. Tribune's plan was put to creditors to a vote earlier this month.

At issue for the Oaktree group are the terms of Tribune's settlement over litigation related to Mr. Zell's leveraged buyout. The buyout ballooned Tribune's debt to about $13 billion, and bondholders led by Centerbridge Partners LP alleged the deal amounted to a "fraudulent conveyance" that rendered the company insolvent. Bondholders agreed to drop the litigation in exchange for 7.4% of Tribune's value. Bank lenders will forgive their debt for a 91% ownership stake in the company.

All are awaiting a report from bankruptcy-court examiner Kenneth Klee, which will probe circumstances surrounding Tribune's ill-fated buyout. If Mr. Klee finds that fraudulent-conveyance claims have merit, it could embolden lower-ranking creditors and push the Oaktree group to accept the current settlement, which insulates bank lenders and others from legal liability.
A finding that the claims are meritless, on the other hand, could encourage the Oaktree group to continue fighting, on the belief they shouldn't bear costs of a settlement with bondholders whose litigation would be unsuccessful in the first place. . Mr. Klee has called his task "massive" and asked Wednesday for a two-week extension, adding another potential delay to Tribune's restructuring.
He declined to comment.

Write to Mike Spector at and Shira Ovide at

FCC Stops Clock On Comcast-NBCU Deal

RBR-TVBR: The FCC has again halted its transaction review clock on the proposed acquisition of a majority of NBC Universal by Comcast. The Commission wasn’t satisfied with material they submitted earlier this month in response to an information request issued last month.

The Media Bureau’s dissatisfaction focuses on requests that each company provide a complete list of every video venture in which they have a financial interest and provide a detailed description of each and every one.

The parties also apparently overlooked or ignored a requirement that they submit a specific certification that the information was complete and accurate. The 180-day transaction clock is now stopped until the new responses are received and are found satisfactory.

In fact, the clock on the FCC’s website will have to be rolled back to June 11th, when the responses had been due. By our calculation the clock will be stuck on Day 37 for a while.

Both companies have been asked to answer a few more questions. Well, more than a few – try 63 for Comcast and 59 for NBCU.

The FCC wants organizational charts, the precise location of every cable system and broadcast station in which the companies have an interest, subscriber information, details of programming deals – the list goes on.

The FCC would like details on the situation where markets served by Comcast cable systems are also served by NBC broadcast stations.

It wants details from NBCU on its plans to divest both KWHY-TV Los Angeles and KXAS-TV Fort Worth.

RBR-TVBR observation: For parties interested in delaying this transaction, the request for additional information will be fuel to drive a push for new comment, reply and reply to reply dates, which at this point stretch to early August.

Other Network Affiliates Will Support Conditional Comcast/NBC Merger

Affiliate associations for ABC, CBS and Fox have six items on their requirement list, and if they are made a condition of approval, they say they will essentially be willing to sit back and forever hold their peace at the nuptials of Comcast and NBC Universal.In a filing with the FCC, the affiliates listed the conditions they want to see:

1. That the conditions will be in force for seven years or upon Comcast’s divestiture of NBC Television Network, should that event occur earlier.

2. There will be no discrimination by Comcast against ABC, CBS and Fox stations, in contrast to the way NBC stations are treated.

3. Comcast and NBCU will not collaborate on retransmission decision-making and negotiation.

In other words, NBCU officials will solely negotiate with other non-Comcast MVPDs, and Comcast officials will solely negotiate with broadcast channels, not NBCU, and further, without any input from NBCU.4. Comcast may not use terms agreed to with an NBC affiliate in reference to any legal proceeding of any kind involving retransmission with a non-NBCU station.5. Comcast must negotiate retransmission and carriage “at arm’s length and in good faith with respect to non-NBCU stations.”6. Comcast will not strive to create a competitive advantage for NBC stations over others in any way.

RBR-TVBR observation: As with the NBC affiliates, this is one group of businesses with a huge stake in this matter. Getting a nod of approval is a big plus for Comcast as it moves toward making its acquisition of NBCU happen.

Ex-NBCer Sen. Al Franken Objects To Comcast/NBCU Merger

In comments filed with the FCC on the pending merger between Comcast and NBC Universal, former Saturday Night Live star Al Franken (D-MN) strongly opposed allowing it to go forward. And if approved, he requested the imposition of nine conditions.

He wrote, “Approval of this deal as it currently stands poses a grave threat to the public interest, threatening to set off a dangerous trend of further media consolidation, create even higher prices for consumers, and risk job loss in an already fragile economy. Simply stated, the effects of this deal will undermine the Commission's goals of competition, diversity, and localism.”

He added that claims by the companies that they will bring significant public interest benefits to US consumers “could not be further from the truth.”

He claimed harm will be done to competition, localism and diversity, that existing regulatory structures are not up to the job of riding herd on the merged entity, and that the commitments already made by the merging parties do not go far enough.

If it is going to be approved, Franken wants the following conditions imposed:

1. All programming and channels owned by Comcast/NBCU must be made available to any MVPD on “reasonable and nondiscriminatory terms.”

2. The merged entity must not discriminate against other program sources in favor of its own, whether or not there are existing and applicable carriage regulations.

3. Online programming must be made available to competitors operating in that medium.

4. The merged entity may not discriminate in favor of its own programming on the internet.

5. A subscription to a property of the merged entity should not be required to view its online programming.

6. There should be an FCC shot clock for resolving carriage disputes.

7. The merged entity should have limited power to bundle its programming when selling it to competitors to prevent abuse of market power.

8. To enable the FCC and public to assess the merged entity’s commitment to serving the public interest, it must file regular reports on the amount of local news and public affairs programming it airs on its broadcast stations. It should also disclose the amount of independently-produced programming aired over broadcast and cable platforms.

9. The merged entity may not use “able to use limited distribution agreements to keep content off Internet web sites or distributors.”

Franken concluded, “The proposed Comcast/NBCU merger fails to promote competition, diversity or localism, instead wreaking havoc on those very values. I urge the Commission to examine the numerous direct and collateral effects this merger would have on consumers and small and rural cable companies; on people's cable bills; and on the programming they view on TV and on the Internet. Perhaps most of all, I urge the Commission to consider the precedent this merger would set. Five years from now, we could live in a world in which most Internet Service Providers own Hollywood studios. The question is whether we'd be all be better off for it. The answer, in my mind, is clear: we would not.”

RBR-TVBR observation: Franken has been leading the charge in opposition to this merger, bringing it up in any hearing where he is in attendance, along with either a party to the merger or a regulator reviewing it – so his comments come as absolutely no surprise.

Wednesday, June 23, 2010

LA Times Management Violates Employee's 1St Ammendment Rights

Ed Padgett, AKA "The Blogging Pressman"
was suspended today by management, pending an investigation, for content he posted on regarding the production problems experienced on Thursday, June 18, 2010.

An announcement by the L.A. Times Publisher, Eddy Hartenstein vaguely described the situation; Ed's post included details and opinions that Ed has every right to post under the same First Ammendment that protects the company's right to publish a newspaper.

(Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.)— The 1st Amendment

Apparently Ed's comments were not well received by management and their feelings got hurt. Thats a shame because management should be more receptive to the constructive critcism that would prevent them from making foolish decisions such as suspending Brother Ed. Ed DID NOT disclose any company or trade secrets that would be detremental to the business, or operation, he merely voiced his opinion based on his more than 30 years experience working for the Los Angeles Times.

No one in management comes close to Ed's years of experience or dedicated service to this newspaper. As a matter of fact, none of his accusers could hold a candle to his ability to operate the behomoth presses that produce the L.A. Times! It has always been an area of contention when managers tell Qualified Journeypresspersons how to do their job, when they are incapable of perfoming our Craft.

Ed, as many of you are aware of, is our Local Recording Secretary; management has targeted our Executive Board Members on previous occassions for demotions and dicipline as a form of punishment for exercising our rights under the law to form a union. I intend on filing an Unfair Labor Practice charge tomorrow morning for that very reason.

This is a fight that we as a Union, will not back down from! I have said to the previous management team that if they don't like what is on their radio, change the station, if they don't like whats on their television, change the channel and if they don't like what they read on the internet, DON'T COME TO OUR SITES! They were not created for their benefit to begin with! Yeah I'm talking to you in Chicago,(whoever you are), and locally, Newton, Walker and Malcolm!

The Union will seek a reversal of Ed's suspension as well as restitution of Ed's lost wages. I have spoken to President Tedeschi and he agrees that this is a form of unjust discipline and we have the support of the International and it's Legal team. I also suspect Ed's Blogging Community will allign their forces in defense of Brother Ed's rights to blog on the internet and voice his opinions that are legally protected.

Since you, management cannot resist, and will never cease reading our blogs, here is a message directly to you.

First, recognize Ed Padgett's rights under the law to post whatever he has a right to publish and reverse his suspension. Second, compensate Ed for his lost wages and this matter will be considered resolved. Should you decide to ignore these recommendations, we are prepared to defend Ed's rights to the bitter end and address this matter publicly, as well as in the legal arena, the choice is yours.

In Solidarity,

Ronnie Pineda, President
Graphic Communication Conference
International Brotherhood of Teamsters Local 140-N

Here are the offending blog posts:

Temperatures Rising At The Los Angeles Times

By Ed Padgett, The Blogging Pressman

Nine days ago we experienced a fire in the control panel for the chillers at the LA Times Olympic Facility, which raised the temperatures in the pressroom to unbearable levels.

To make matters worse, many of the fans that are meant to distribute the air in the pressroom are non-functional.

Brother Edward Brunner wondered just how hot the pressroom was and brought in a thermometer yesterday to measure the temperature in the pressroom. We all knew it was uncomfortably hot, but had no idea it was eighty degrees in the pressroom.

The printing process uses a dampener solution that throws a mist of water into the air of the pressroom, which makes it extremely humid.

Many workers are complaining of rashes under their arms and other places on their bodies due to the temperature and humidity, which working without breaks or lunch periods never allows one to cool down properly.

Olympic Pressroom Manager Johnny Walker has assured me the replacement fans and control panel for the chillers are on order, and may be installed as soon as this Monday.Let’s hope Walker is correct as the heat wears you out.

Yesterday I brought in an ice chest filled with a case of water and a case of soda, something management should be doing for the workforce at the Los Angeles Times. I could not believe how quickly the COLD DRINKS disappeared.For you naysayers of the union, who loves you baby, certainly not management.

Posted by Ed Padgett

LA Times Orange County Plant Back Online

It came as no surprise to hear a crew was created early Friday morning to fire up the presses at the shuttered Orange County Los Angeles Times, which was met with cheers from my colleagues that would love to return to their old working place.

A crew was also assembled to run the newspaper from 4:00 p.m. to midnight, and two crews to run the presses beginning at midnight.

No word how long the facility will be in operation at this time, but the Olympic Facility cannot handle the additional workload at this moment. Will keep you updated as information flows in.

Posted by Ed Padgett

Pressmen Beware

With all the ado in the pressroom last night I was requested to inform my brothers and sisters to put their cell phones away, or be written up. I thought to myself, you’ve got to be f*@king kidding me?

Posted by Ed Padgett

Production Problems At The Los Angeles Times

In my thirty-eight years working at the Los Angeles Times, last night was the very first time I wondered if we would deliver today’s edition to our readers.

Yes it was that bad last night at the Olympic Production Facility.

The trouble began with one of the new platesetters failing, giving the pressroom a plate starter (when the last plate arrives to the printing press) sometime around 7:15 p.m., or one hour and fifteen minutes late. The new platesetters are computer to plate, which eliminates the need for negatives that had to be hand placed onto the 38 50 plate burners, which is suppose to save time in the newspaper production process.

Once the plates are mounted onto the plate cylinders the presses begin running, but last night every press experienced web breaks upon starting. I would estimate we lost a minimum of fifty webs last night, which is extremely high.

It was so serious last night that pressroom manager Johnny Walker had to turn off the Laker game and return to work at 8:30 p.m., with Mr. Walker still working when I departed the pressroom this morning at 4:30 a.m. It’s not often I have anything positive to say regarding our management team at the Los Angeles Times, but I have to say Johnny Walker did a hell of a great job last night and into the wee hours of the morning today.

Mr. Walker was next to the men on the catwalk as everyone was attempting to get the presses to produce today’s newspaper. He also ran up and down the catwalks and stairwells trying to identify what was causing all the web breaks, and remember five of the six presses were experiencing problems last night. Many do not care for Mr. Walkers style of leading, best compared to a Marine drill sergeant, but he has his hands full with all the issues in the production of the newspaper. Let’s hope he was able to get home this morning and grab a few hours of sleep.

Our plant manager, which we call Happy Boots, was no where to be seen so I’m assuming he was sleeping while the plant he’s charged with running was burning down. I’ve suggested to our plant manager that he needs to don a pressman’s uniform to see for himself the pressmen are not the cause of the problems, as he suggests often.

The text messages began arriving on my Droid just after 3:00 a.m. from several of the delivery agents I happen to know. They asked why their newspapers had not arrived yet, with one agent mentioning his drivers had other jobs to attend to after delivering their draw of newspapers. I did my best to reassure the agents the newspaper would be there, four to five hours late.

Before the newspaper shuttered the Orange County Production Facility, our supervisors would call for help from our brothers in Costa Mesa, which meant sending trucks and production down south. Today we have placed all our eggs in one basket, and have no one to call for help, with one production facility printing all of the newspaper.

Let’s hope the morning shift at Olympic can catch up, so this afternoon’s shift is not backed up to the wall when we arrive at the newspaper for our 4:00 p.m. shift.

BTW, I’m up to 22.5 hours of overtime in six days, which is in addition to my regular hours.

The Los Angeles Times Blog LA Now, has the story on the late run at the newspaper.I'm just your average pressman and say we need to reopen the Los Angeles Times Orange County Plant, for the remainder of this year, if anyone's listening?
Posted by Ed Padgett

This brings to mind the Los Angeles City Counsel, worried about Arizona immigration law, instead of the impending bankruptcy of the city of Los Angeles.

Let’s worry about the problems facing the Olympic Facility instead of your personal vendetta against the men and women producing the newspaper at the Los Angeles Times, and you know whom I’m speaking to.

Posted by Ed Padgett


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Tuesday, June 22, 2010

Comcast Concessions Smooth Way For NBC Universal Deal

By David Lieberman, USA TODAY

NEW YORK — Supporters and opponents of Comcast's bid to control NBC Universal each had something to crow about Monday before the midnight deadline for advocates to formally register their views at the Federal Communications Commission.

After weeks of negotiations, Comcast CMCSA made three concessions to independently owned NBC affiliates in order to get their support at the FCC, which has the power to veto Comcast's plans.

Comcast told the group that it would continue to broadcast major sports events including NFL Football and the Olympics on local stations, says Brian Lawlor, chairman of the NBC Affiliate Board and an executive at E.W. Scripps, a TV station owner.

In addition, he says, Comcast said it would continue to offer NBC shows through local stations instead of directly to consumers via cable.

The cable giant also said it would not retaliate against NBC stations that ask Comcast to pay a fee for the right to retransmit over-the-air TV signals. Although station owners "clearly have concerns," the concessions "allow us to be comfortable," Lawlor says.

But several opponents say those concessions don't go far enough.

Bloomberg — which is challenging CNBC's dominant position in TV business news — joined a coalition of opponents, which include Consumers Union and the Communications Workers of America.

Comcast and NBC Universal would "exert a degree of market power unrivaled in our nation's media history," the group said in a letter. That power would lead to higher cable and Internet prices for consumers as well as less diversity of opinions over the media, the coalition says.

Open Internet advocacy group Public Knowledge separately asked the FCC to require Comcast's Internet business to agree to treat all websites equally for transmission purposes, a policy known as network neutrality.

Satellite companies also said they're concerned about Comcast's deal.

DirecTV said, in a filing, that if Comcast moves popular shows to the Internet, it "could deny (them) to competitors." Federal rules require cable companies that own networks to make them available to competitors including satellite distributors. Dish Network raised similar concerns.

Comcast Executive Vice President David Cohen took the proceedings in stride, saying in a blog post that the company is "ready, willing, and able to address legitimate concerns."

The company, he adds, will respond to the latest comments in July.

You might also be interested in:
Customers' revenge: Cable providers now try to play nice ( in Money)
Court OKs TV rules opposed by Comcast, Cablevision ( in Life)
Cable and satellite TV broadcasting dispute may cost you ( in Technology Live)
Does cable have grip on speedy Internet? ( in Money)

White & Case Gets First Crack at Sam Zell

By Zach Lowe, The Am Law Daily

It is a moment everyone in the Tribune Co. bankruptcy case has been waiting for: the deposition of Sam Zell, architect of the leveraged buyout that sunk the media empire.
The Tribune company bankruptcy has been among the most contentious Chapter 11 cases we've seen, but the Trib estate, represented by Sidley Austin, has begun the process of gathering support for a proposed reorganization plan that would bring the company out of bankruptcy and pay off creditors at varying levels.

Hovering over that plan, though, is the claim by some bondholders that Zell's leveraged buyout of Tribune was a so-called fraudulent conveyance, meaning the process left the company insolvent.
If a judge finds that the buyout was indeed a fraudulent conveyance, the entire Chapter 11 case could be turned on its head, experts have told us. The lenders who arranged the LBO--chiefly JPMorgan Chase--could be blocked from recovering anything for the Tribune debt they now hold. The estate could also have claims against the banks and Zell, according to our prior reporting.

And Zell will finally talk in a deposition scheduled for June 28th, according to court records. And who will be doing the questioning? The prize goes to White & Case partner Thomas Lauria, court records show. Lauria, who took on the Obama administration in opposing the Chrysler bankruptcy plan until the bitter end, represents Wells Fargo, a bridge lender to Tribune that has not committed to support the proposed reorganization, according to court records.
Bondholders, including a group advised by Brown Rudnick, who have called for an aggressive examination into fraudulent conveyance claims, will have to wait in line behind Lauria for now. But they'll certainly be watching to see what Zell says in 11 days.

Lauria did not return messages seeking comment.

Two sources familiar with the matter tell us Jenner & Block will be representing Zell during that deposition. That's not a surprise, since court records show Jenner has advised Zell individually in other Tribune proceedings. A Jenner spokesman did not immediately return a call seeking comment.

One a side note: Kenneth Klee, the examiner appointed last month to investigate the collapse of Tribune, is well into his work and now estimates the process of producing his report might cost twice as much as he originally estimated, according to a separate filing.
Klee, a name partner at the bankruptcy boutique Klee, Tuchin, Bogdanoff & Stern, is scheduled to complete his report by July 12th. He originally guessed the work of producing the report might cost about $4 million or $5 million, according to an update Klee filed Wednesday night.
Now that he and his crew have waded into the morass that is the Tribune case, they say it may cost between $7.5 million and $8 million, court records show.

Tribune Creditor Wells Fargo To Grill Sam Zell

By: Lynne Marek

(Crain's) — Tribune Co. Chairman Sam Zell is slated to be questioned under oath later this month by one of the creditors in the Chicago-based media company’s bankruptcy proceedings.

Wells Fargo & Co., the agent for Tribune creditors owed $1.6 billion, said in a Delaware Bankruptcy Court filing Wednesday that it expects to take Mr. Zell’s deposition in New York on June 28.

The Wells Fargo creditors have objected to the company’s proposed plan of reorganization, under which they would receive only a fraction of what they are owed.

The plan would also require that creditors not sue Tribune officials, including Mr. Zell, or the bank lenders who enabled his leveraged buyout of the company a year before it filed for bankruptcy in December 2008. Some creditors have called the transaction a “fraudulent conveyance” that set the company up for insolvency.

The Tribune didn’t immediately respond to requests for comment.

The same creditors earlier this month also objected to millions of dollars of bonuses that would be provided to top Tribune executives and managers under bonus plans.

Broadcast Union News: Tribune's non-executive employees are not exactly thrilled about the bonuses either. -BD

CBS Eyes Indian Television

RBR-TVBR: Reliance Broadcast Network (RBN), the owner of the largest radio network in India, announced plans for a joint venture with CBS Corporation to own and operate television channels in India.
The planned venture would have 50-50 ownership interests for the two companies.

RBN, which is a publicly traded company until recently known as Reliance Media World, filed notice with the Bombay Stock Exchange of the proposed joint venture (JV) after signing a preliminary, non-binding term sheet with CBS on Sunday (6/20). The parties hope to complete a definitive contract within a month.

According to RBN’s notice to the exchange, the “Business of the JV will initially include English Language general entertainment channels, and the parties will explore owning and/or operating Hindi Language and Regional Language general entertainment channels in the future.” Just how many channels might be developed is not stated, but the notice speaks of “owning and/or operating a portfolio of television channels.”

RBN said the JV would have programming rights covering India, Nepal, Bhutan, Sri Lanka, Bangladesh, the Maldives and Pakistan in the beginning, with potential expansion to other countries with the mutual consent of the partners.

RBN owns and operates 92.7 Big FM. It currently has transmitters in 44 Indian cities, plus Singapore. Although it uses the name 92.7 Big FM for the entire operation, the stations have programming which is localized for each market.

RBN is part of the empire of Anil Ambani, ranked by Forbes magazine as the 4th wealthiest person in India, with a personal fortune estimated at $13.7 billion. His elder brother, Mukesh, is #1 at $28 billion.

RBR-TVBR observation: With a population of over 1.1 billion people, it is easy to see why CBS Corp. CEO Les Moonves would be interested in India. Over half of all households in India now have a television and that figure is continuing to grow.

Broadcast Union News: Coming up next, CSI Bombay.

Increasingly, Nonprofits Fill A Need For Investigative Reporting

By Howard Kurtz
Washington Post Staff Writer

In a seventh-floor conference room festooned with framed articles and journalism awards, Managing Editor Gordon Witkin leads the morning discussion of stories his staff is pursuing.
Their latest scoop -- on members of Congress dumping their BP stock -- "was a big success," he says. "It was in an AP story that sent it everywhere, including Yahoo and Google News."

On the front burner, a dozen staffers around the table explain, is a joint series just approved by the New York Times. A piece underway with The Washington Post is being edited. There was a "tough conference call," says international director David Kaplan, with eight London producers on a 10-segment project with the BBC.

Investigative reporting is increasingly being outsourced, and these offices off K Street serve as a boiler room for research that the big boys are less able to afford. The Center for Public Integrity is hardly a traditional news operation, but it is taking on a more prominent media role, fueled by a recent hiring spree that has added more than half a dozen journalists to its 45-person staff.
"We see all our friends dying on the vine," Kaplan says. "The irony is we're doing pretty well, and we have a chance to fill these gaping holes." And the center fills those holes free of charge, furnishing information -- and sometimes staff-written pieces -- to the media outlets.

After years of feeling unloved and unwanted, some fortunate journalists are again finding their services in demand. While most print newsrooms remain shrunken and some major newspapers are mired in bankruptcy, new media incarnations are giving the restless and the jobless a second lease on life.

AOL says it plans to add hundreds of journalists to its stable over the next year. Yahoo has opened a Washington bureau. The Wall Street Journal just created a New York section. And TBD, owned by Politico's corporate parent, is recruiting for its online effort to cover the Washington area.

"There is a good buyer's market for people who want to do this work," says Bill Buzenberg, a no-nonsense former vice president for news at National Public Radio, who became the nonprofit group's executive director in 2007.

One of his latest hires -- as "journalist in residence" -- is John Solomon, who resigned as editor in chief of the Washington Times days before a management shakeup last fall that led to the paper shedding half its staff.

"It is really invigorating to be part of an organization that is committed to doing accountability journalism at a time when so many for-profits are shrinking from it," Solomon says. "I had a lot of offers from other news organizations. I saw that the center was doing a lot of things we were trying to do at the Washington Times before the implosion." Buzenberg's operation has also brought in veterans of the Wall Street Journal, Reuters and National Journal.

The center is not a new Washington player, having been founded more than 20 years ago by Charles Lewis. And it is hardly the only nonprofit making a splash: The two-year-old ProPublica, based in Manhattan, shared a Pulitzer Prize with the New York Times Magazine this year for a probe of hospital deaths during Hurricane Katrina.

But the center -- and any group with "public integrity" in its name is setting a high bar -- has been on a roll. Last week, ABC's Brian Ross teamed up with Solomon, who got a tip from a government official, for a "World News" story on security problems at the Thai factory that makes computer chips for American passports.
Ross calls the group "very valuable," saying: "They find good leads or key documents or sometimes a whistle-blower, and then we have to run it through our reporting process. They do good work, but they need the outlet."

True, but finding outlets hasn't been hard. In a major exclusive last month, the center gave Financial Times data showing that BP was responsible for 97 percent of the most serious safety violations in the U.S. refining industry in recent years.

This month, Solomon shared a double byline in the Times for obtaining Coast Guard logs showing that officials knew days after the Deepwater Horizon explosion that 64,000 to 110,000 barrels of crude oil could gush out each day.

In May, The Post collaborated with the center on a piece about federal investigators looking at a District organization that was helping mortgage lenders make high-risk loans that left the government at risk for default. Politico recently carried three pieces by center staffers, including a list of the lobbyists who serve as the biggest bundlers of campaign contributions. The center is also pursuing a long-term project with "60 Minutes."

When Buzenberg joined the group, "we had to dig out of a hole," he says, with budget deficits forcing him to lay off a third of the staff. But at last week's morning meeting (where all the faces around the table were white), development director Robin Heller described what she called "a million-dollar day" -- the total of grants just committed by the MacArthur and Park foundations. Other major donors include the Ford Foundation ($2.4 million) and Carnegie Corp. ($507,000), along with $356,000 from individuals -- adding up to a $5 million annual budget.

The center has also received grants -- including $300,000 last year -- from the Open Society Institute founded by liberal philanthropist George Soros, sparking questions about whether its news agenda leans to the left. "We have a very clear firewall editorially," Buzenberg says. "We decide what we want to do and how we want to do it." Donors, he says, "may hate it and they may never fund us again, that's their right. . . . It isn't free to produce. We've got to get money."
The larger issue is whether such not-for-profit outfits can become self-sustaining, or will forever be dependent on foundations and wealthy donors. If those checks stop coming, these operations could be crippled. Buzenberg says the center, which now sells e-books, is looking to generate more revenue.

After a long, cold season of layoffs, the climate has thawed enough for both Web companies and nonprofits to hire people to create content, rather than just repackage it. But investigative reporting -- with its labor-intensive digging and frequent dry holes -- remains the most expensive of journalistic pursuits. Even brand-name news organizations are no longer too proud to accept outside help. But here's hoping that doesn't become a tempting way to abandon such work to subcontractors.


Samuel Gompers (1850 - 1924)

What does labor want?

We want more schoolhouses and less jails.

More books and less arsenals.

More learning and less vice.

More leisure and less greed.

More justice and less revenge.

In fact, more of the opportunities to cultivate our better natures.

We do want more, and when it becomes more, we shall still want more.
And we shall never cease to demand more until we have received the results of our labor."

- Samual Gompers, Chicago, August 28, 1893

Samuel Gompers was the first and longest-serving president of the American Federation of Labor (AFL); it is to him, as much as to anyone else, that the American labor movement owes its structure and characteristic strategies. Under his leadership, the AFL became the largest and most influential labor federation in the world. It grew from a marginal association of 50,000 in 1886 to an established organization of nearly 3 million in 1924 that had won a permanent place in American society. In a society renowned for its individualism and the power of its employer class, he forged a self-confident workers' organization dedicated to the principles of solidarity and mutual aid. It was a singular achievement.

Wednesday, June 16, 2010

Teamsters want Tribune Reorg Nixed Until True Owners Have Their Say

And just who are the true owners of Tribune Corporation? The employees, says Teamster General President Jim Hoffa.

However, despite the fact that the company was organized as an ESOP, Hoffa says that employees were shoved aside, with all power going to Sam Zell. He wants that to change.

The union argues that the employees are the true owners of Tribune, and putting the company’s television licenses under the control of Zell and his managers constitutes an unauthorized transfer of control to a third party.

While 100 percent ownership of the Tribune was transferred to employees through an employee stock ownership plan (ESOP), control was given to billionaire Sam Zell, who became chairman and CEO. Despite their ownership, the employees had no say in selecting the trustee of the ESOP or the members of the Tribune’s board of directors.

“The FCC wrongly allowed real estate mogul Sam Zell to force Tribune employee-owners to the sidelines as he saddled them with an untenable $13 billion of debt and took full control of the company they own,” said Hoffa. “This not only violated the law, it led to a wholesale slash and burn strategy that forced the company to eliminate thousands of good jobs, sell off valuable assets, and cut news resources to the bone.”

The union wants all FCC waivers to be stalled or denied “until Tribune's board has been reconstituted in accordance with commission requirements and the reconstituted board has had an opportunity to pass on the application.”

Tribune Broadcasting’s “Joint Plan of Reorganization for Tribune Company and its Subsidiaries” requires the transfer of all of its FCC licenses, and it exposes all relationships held by dint of a waiver to reconsideration. The FCC put the proceeding, listed under MB Docket No. 10-104, under ex parte permit-but-disclose procedure at the request of Tribune counsel.

To recap, there are three simple waiver-requiring cross-ownership situations include the pairings of WPIX-TV and Newsday in the New York City DMA, KTLA-TV and the Los Angeles Times in the Los Angeles DMA and WSFL-TV and the Sun Sentinel in the Miami DMA.

Chicago is a special situation: a three-entity market, and the iconic grouping of WGN-AM, WGN-TV and the Chicago Tribune. The combination has already been granted a permanent waiver by the FCC.A flagship/satellite relationship exists between WTTV-TV Bloomington IN and its satellite, WTTK-TV Kokomo IN; a waiver is required to keep that situation in place.

Finally, two waivers are required in Hartford CT. For starters, there are two television stations, WTIC-TV and WTXX-TV, combined with The Hartford Courant, requiring a cross-ownership waiver. And Tribune bought WTXX under a failed station waiver, which it needs to have renewed.

Although the FCC has long held that giving third parties control over station personnel, programming, and finances violates the Communications Act, the commission allowed precisely that when in 2007 it approved a change in control and granted waivers to the Tribune Co. needed to complete its going private transaction.

In order to emerge from bankruptcy as a reorganized company, the Tribune must secure FCC waivers to its broadcast cross-ownership rules in the Chicago and Hartford-New Haven markets. The FCC also must approve the transfer of ownership of the company, post-bankruptcy, to its creditors.

“We’re talking about creditors here, not broadcasters. What assurances do communities have that local news programming will be protected?” Hoffa said. “Tribune’s employees, who live and work in the affected communities, have an interest in the long-term survival and growth of this company as well as in the programming and coverage it provides their hometowns. As the outgoing owners, they should be given the opportunity to approve the application before it is considered by the FCC in order to best protect the public interest.”

Nothing in the proposed bankruptcy plan commits the creditors, who will emerge as the new owners, to maintain or improve upon the quantity of local news programming.

Media consolidation, and cross ownership in single markets are issues that strikes at the heart of freedom of speech.

"One of the challenges we face as a nation is having an informed public," says Heather Gray, chairwoman of WRFG-FM (89.3), a nonprofit station in Atlanta. "You need to have many voices to guarantee democracy and the free flow of information. That's why we protested four years ago. Now we have to have the same fight again. That's an outrage."

Bernie Lunzer of the Newspaper Guild said at an April 2010 FCC Workshop in Tampa, Florida that the FCC should encourage experimentation and consider new ways to support news, but that “diversity of delivery does not create diversity of content.”

“But if all the FCC does is lift the cross-ownership ban entirely, it will have done nothing to preserve or promote quality information. In fact, it will speed up the demise of journalism while preserving a cash flow for some,” said Lunzer, whose organization represents more than 28,000 media workers, including 15,000 journalists.

The FCC’s past attempts to dismantle ownership protections were stopped by the landmark Prometheus v. FCC as well as the thousands who spoke out against consolidation nationwide. The Third Circuit Court of Appeals recently lifted the stay on the FCC that resulted from that case, freeing the agency to modify its rules this year.

Big broadcasters claim that the Internet means that we don’t need to worry about local news coverage anymore. But it’s not true that the rules are no longer relevant in a digital age; the rules still matter.

What’s different is that just as media companies must learn to innovate, those who care about a democratic media must learn to fight on multiple fronts. From expanding broadband access to saving Net Neutrality to stopping the Comcast/NBC merger, activists and advocates are busy anticipating the challenges of media’s future.

Brandy Doyle of the Prometheus Radio Project said "Despite the under-the-radar events and the increasingly complex media landscape, it’s not hard to get caught up: Consolidation is still the problem. Independent media is still the solution."

In addition to the Teamster's complaint, petitions to deny the Tribune company's request for FCC Wavers were filed Monday night by Free Press, Media Alliance, NABET/CWA, IATSE, IBEW, National Hispanic Media Coalition, Office of Communication of the United Church of Christ and the Charles Benton Foundation.

Kaity Tong, Sal Marchiano and others suffered from age discrimination, WPIX's ex-news director says

BY Scott Shifrel and Richard Huff

WPIX's former news director has slapped the station with a dishy $4.5 million lawsuit that says she and New York news legends Marvin Scott, Sal Marchiano and Kaity Tong all suffered from age discrimination.

Karen Scott, who was fired last August from the Tribune-owned Channel 11, says she was let go because of her age, 60 - and not sagging news ratings as she was told. She maintains her firing was consistent with the way the station handled other senior staffers by either firing them, or reducing their roles.

Former station general manager Betty Ellen Berlamino is blamed for setting the ageist tone at Channel 11 in Scott's suit, filed yesterday.

In it, she reveals that in 2009, 72-year-old veteran reporter Marvin Scott's (no relation) role was greatly reduced.

And the accused hatchet lady coldly asked, "Why doesn't he just retire already?" the suit claims.
Tong, one of Channel 11's main anchors, was also a target, so they loaded the 59-year-old New York TV veteran with more work to try to get her to quit.

Berlamino also set her sights on sports great Marchiano, 68, the suit insists.
He just "doesn't look good on the air," she allegedly said.

When Marchiano left the station in 2008, WPIX said it was his decision. But he later said he was forced out.

"Reports about my retirement were - and are - inaccurate," said Marchiano, a longtime fixture on the New York sports scene.

Scott also dished that Larry Hoff, 58, a former features reporter for "PIX Morning News" was the target of age-related comments from Berlamino.

A station spokeswoman declined to comment yesterday.

"What she did there was pretty much unparalleled," Scott's lawyer Kenneth Rubinstein said, citing the station's 32 Emmy nominations.

Rubinstein said Tong was "an example of an older news person treated more harshly or differently than others."

Berlamino - who was fired last week by Tribune broadcasting honcho Jerry Kersting after he "decided it was time to make a change at WPIX" - did not return a request for comment.

One insider defended her and insisted that she was not out to get Marchiano, Marvin Scott, Hoff or Tong. Likewise, the insider noted, Berlamino, Karen Scott and Scott's replacement Bill Carey are all in the same "protected" age bracket.

Scott was pulling in upwards of $300,000 a year, according to the suit. Her lawyer said she is still out of work and that the firing was "a shock to the system."

Read more:

Broadcast Union News: Last year, four IBEW Local 1212 represented engineers at WPIX were laid off out of seniority in violation of the Union's collective bargaining agreement with Tribune. All four engineers were over age 40. IBEW Local 1212 filed an unfair labor practice on behalf of their members in this regard.

Tuesday, June 15, 2010

Watchdog Groups File Opposition To Tribune License Transfer

The FREE PRESS, the MEDIA ALLIANCE, NABET/CWA, IATSE, IBEW, the NATIONAL HISPANIC MEDIA COALITION, the OFFICE OF COMMUNICATION OF THE UNITED CHURCH OF CHRIST, INC., and CHARLES BENTON have all filed a Petition to Deny the assignment of TRIBUNE's broadcasting licenses from debtor-in-possession status back to the company.

"Many of the same creditors that contributed to the ill-advised transaction that buried the TRIBUNE COMPANY in debt now seek unprecedented waivers to allow them to complete their looting of the assets of one of the nation’s major media companies," charged the organizations. "Their applications should be dismissed or denied. They subordinate the interests of the public to the private interests of the creditors, and do not come close to meeting the evidentiary standards required for waivers of the Commission’s ownership rules."

In the filing, the groups charge that "the circumstances leading to the proposed transaction are self-inflicted wounds. TRIBUNE went bankrupt because of unwise financial decisions. The properties involved are profitable on an operating basis, and salable as free-standing entities."
The challenge also noted that "as of this time, the ownership interests of the various TRIBUNE creditors in the newly reorganized company have yet to be determined. Although TRIBUNE maintains that changes in the exact identity of the future owners are 'immaterial,' the Commission cannot now make the necessary determinations as to how to apply its ownership rules."

On the company's CHICAGO newspaper-radio-television situation, the parties said that "TRIBUNE’s application does not meet the FCC’s criteria for presuming that the cross-ownership is in the public interest.

None of the properties are 'failed' or 'failing' within the meaning of Commission policy. The broadcast stations remain on the air and the CHICAGO TRIBUNE is still in circulation.

Tribune’s bankruptcy was voluntary, not involuntary. Moreover, WGN-TV’s audience share exceeds 4%, and TRIBUNE does not even attempt to claim that the station has ever had a negative cash flow, much less that it has been negative for three years.

Finally, and importantly, TRIBUNE has made no attempt to sell its properties to other buyers; it simply asks the Commission 'to assume' that the properties cannot be sold except at an artificially depressed price.

While the stations may not be salable at the unreasonably high price that the prior ownership team unwisely agreed to pay, the test is not whether the sale is at a loss, but whether the price would be artificially depressed.

Many of the same creditors that contributed to the ill-advised transaction that buried the Tribune Company in debt now seek unprecedented waivers to allow them to complete their looting of the assets of one of the nation’s major media companies.

Their applications should be dismissed or denied.

They subordinate the interests of the public to the private interests of the creditors, and do not come close to meeting the evidentiary standards required for waivers of the Commission’s ownership rules.

Because these applications are the first to be considered under the Commission’s recently-revised cross-ownership rules, public interest groups and the industry will be watching closely to see if the Commission is serious about enforcing its rules.

In order to promote localism, competition and diversity in the marketplace of ideas, Commission policy contemplates that common ownership of newspapers and broadcast stations in the same community should be terminated upon the sale of the broadcast properties to a new owner.

Tribune nonetheless seeks permission to assign its newspaper/broadcast combinations in five markets, and to hold two TV stations in Hartford. The circumstances leading to the proposed transaction are self-inflicted wounds. Tribune went bankrupt because of unwise financial decisions. The properties involved are profitable on an operating basis, and salable as free-standing entities.

The proposed transaction seeks even more expansive waivers than those granted by a sharply divided FCC in 2007.

Significantly, a meritorious petition for reconsideration and a judicial challenge to that earlier decision remain pending, so the Commission’s 2007 waiver decision is non-final and subject to reversal.

A fundamental underpinning of the FCC’s licensing policies is that an invalidly granted license cannot be assigned. Before the Commission acts on the new requests for waivers, it should complete its reconsideration of the 2007 decision. This would allow the Commission to ensure that the Tribune cross-ownerships are broken up so as to promote diversity, competition and localism.

The applications for transfer are defective on their face, and cannot be granted on the basis of the information submitted to the Commission. Specifically, as of this time, the ownership interests of the various Tribune creditors in the newly reorganized company have yet to be determined.

Although Tribune maintains that changes in the exact identity of the future owners are “immaterial,” the Commission cannot now make the necessary determinations as to how to apply its ownership rules.

In particular, the Commission cannot currently ensure that the new ownership complies with the citizenship requirements in Section 310(b). For the same reason, the Commission cannot lawfully grant Tribune’s request for an unprecedented waiver allowing future transfer of the cross-owned properties in “tandem” to yet another new owner.

Indeed, the fact that the assignees are already contemplating a future resale of the properties raises serious questions as to their commitment to provide service in the public interest, as opposed to “dressing up” their balance sheets to prepare for the next transaction.

Tribune argues that principles of comity require the Commission to subordinate its policies to those of the Bankruptcy Code. However, the agency’s policy is to coordinate the two bodies of law, not to place the interest of private parties ahead of the public. Sale of the cross-owned Tribune properties as a package is not required to assure comity with the bankruptcy laws; the Commission can require sale of the broadcast stations and the newspapers to different owners without in any way undermining the bankruptcy laws.

A substantial portion of Tribune’s waiver requests consists of attacks on the factual, statutory and constitutional underpinnings of the Commission’s newspaper/broadcast cross-ownership (“NBCO”) rules.

These claims are utterly without merit, but the Commission need not consider them at all, since Tribune itself created unequivocal case law that challenges to the validity of the NBCO rule can only be brought in a rulemaking context.

Tribune’s arguments are not unique to the five markets where Tribune seeks waivers, and it is free to present them (as it has) in pending rulemaking proceedings, and the Third Circuit’s pending review of the Commission’s 2006 Quadrennial Review decision.

Tribune’s request for assignment of its Chicago properties represents the first time the Commission has been asked to apply its new NBCO rules. Tribune’s application does not meet the FCC’s criteria for presuming that the cross-ownership is in the public interest. Nor has Tribune made a showing sufficient to reverse the presumption.

The broadcast stations remain on the air and the Chicago Tribune is still in circulation. Tribune’s bankruptcy was voluntary, not involuntary. Moreover, WGN-TV’s audience share exceeds 4%, and Tribune does not even attempt to claim that the station has ever had a negative cash flow, much less that it has been negative for three years.

Finally, and importantly, Tribune has made no attempt to sell its properties to other buyers; it simply asks the Commission “to assume” that the properties cannot be sold except at an artificially depressed price. While the stations may not be salable at the unreasonably high price that the prior ownership team unwisely agreed to pay, the test is not whether the sale is at a loss, but whether the price would be artificially depressed.

Nor has Tribune met the Commission’s “substantial news” test. Indeed, inasmuch as this is a transfer of an existing combination, Tribune cannot qualify for a waiver under this standard. Even if the Commission overlooked that fact, Tribune threatens to reduce, rather than increase, the amount of news it intends to present.

Because Tribune cannot qualify for a presumption in favor of a waiver in Chicago, its request must be considered under the Commission’s “four factor” test. It meets none of the factors as it does not propose to increase the amount of local news, the operations of Tribune’s cross-owned properties are currently integrated and not independent, the HHI for Chicago is high, and none of the properties are, standing alone, in financial distress.

Similarly, Tribune has not made sufficient showing to obtain waivers of either the NBCO rule or the TV duopoly in Hartford. It would require both waivers to transfer the Hartford Courant and the two Hartford TV stations in tandem. The only reason that Tribune has all three properties now is that it failed to comply with two prior FCC orders directing it to come into compliance with the NBCO rule within 6 months. Commission action to require compliance with its ownership rules is long overdue.

Tribune has failed to show that WTXX(TV) in Hartford is either a “failed” or “failing” station that would justify a waiver of the TV duopoly rule. WTXX(TV) has not gone dark and is not in involuntary bankruptcy. Nor has Tribune shown any efforts to sell the station to an out-of-market buyer since .2006.

Tribune’s effort to rebut the presumption that a waiver of the NBCO rule for Hartford would not serve the public interest is similarly inadequate. It fails to meet the Commission’s “four factor” test.

First, Tribune has not promised any increase in the amount of local news in the market. In fact, Tribune has significantly degraded newsgathering capacity in Hartford, and does not intend to reverse that practice.

Second, as in Chicago, Tribune boasts about the degree to which it has integrated the Hartford newsgathering operations, rather than show that the newsrooms are operated independently.

Third, Tribune’s analysis of the market concentration overstates the extent of actual competition, and finally, it makes no showing about the financial condition of either the Hartford Courant or WTIC-TV.

Finally, even if the Commission determines to grant any temporary waivers to Tribune, they should not be for the extended duration requested by Tribune.

Tribune’s request for a waiver of indeterminate length tied to the pendency of litigation should be rejected out hand since it violates clear Commission policy and would amount to a permanent waiver as litigation is continuous.

Moreover, even for a waiver of specific length, six months, rather than 18 months, is ample time under Commission precedent to allow for the orderly disposition of media properties.

Tribune Company Sale and the Public Interest - Benton Foundation Report

In August 2007, Tribune shareholders approved a plan to take the company private for over $8 billion. In a mind-numbingly complex series of transactions, Chicago real estate mogul Samuel Zell will come to control Tribune. Zell, a new investor in the company with little background in media(1) and none in journalism, will contribute some 300 million dollars and will receive board representation and warrants for 40% of the outstanding common stock.

In Chicago, Tribune’s newspaper/broadcast cross-ownership of WGN, WGN-TV and The Chicago Tribune is grandfathered under the FCC’s newspaper broadcast cross-ownership rule. Although according to FCC rules this privilege is not transferable to a new owner – as in the case of the sale to Zell – Tribune is seeking a temporary waiver to permit the transfer of WGN and WGN-TV pending final action on the FCC’s review of media ownership rules.

Tribune is seeking similarly extraordinary waivers in four other cities including New York and Los Angeles.(2)

A number of public interest groups are currently asking the FCC to deny Tribune’s waiver requests because they violate the newspaper broadcast cross-ownership rule and Tribune advances absolutely nothing even purporting to demonstrate that grant of its requested waivers will benefit the public. An FCC decision on Tribune’s waiver request is pending.

There are a number of ways the Tribune sale could impact the public:

The sale will result in $13 billion debt load, generating economic pressures that may result in layoffs. The media industry has established a pattern of targeting news departments for downsizing when they restructure, making it ever more difficult for news departments to thoroughly and accurately cover the stories that matters to local communities.

In fact, shortly after announcing the sale, Tribune announced 250 job cuts in Chicago and Los Angeles. Allowing the waivers will further jeopardize the Tribune's ability to deliver quality news and information.

The sale represents a complex corporate restructuring that would allow Tribune to eliminate most of its corporate taxes. If a similar structure had been in place in 2006, Tribune would have avoided $348 million in taxes.

Tribune will not have employee representation on the board of directors. According to Teamsters President, "If given a chance, Tribune employee-owners could play a crucial role in enhancing localism and diversity for the benefit of the public served by the Tribune."

According to the Chicago Tribune, Zell has “little background in media and none in journalism,” which could negatively impact how the media empire is run.

Public interest advocates find that since allowing Tribune to own both WGN and the Chicago Tribune promotes neither diversity nor competition, the only argument left to support a waiver is that the benefits of common ownership outweigh the reduction in diversity and competition.

Tribune has attempted to argue that its common ownership of WGN and the Chicago Tribune has allowed it to produce in-depth news specials and provide better news coverage. But a small increase in local news falls short of the extraordinary benefits that might justify waiving the rules.

Moreover, the reported “benefits” illustrate how common ownership actually decreases the diversity of stories available to the public. By time-shifting newscasts, viewers are simply receiving news from one voice, rather than an independent voice.

Moreover, to the extent that there may have been benefits in relying on and collaborating with Chicago Tribune’s news staff, it is unlikely to continue considering Tribune’s downsizing of the Chicago Tribune.

Further, by sharing resources and collaborating, instead of reporters deciding what stories to cover and gathering news on their own, they end up reporting the same stories already being covered by the paper or the broadcaster.

Moreover, to establish this type of relationship there is no pre-requisite that the two entities be commonly owned. Finally, the various “public service projects,” such as promoting events and participating in food drives that many other businesses engage in are simply irrelevant to a waiver analysis.

The public interest advocates are urging the FCC to deny the requested waivers. As long as the cross-ownership rule stands, they argue, Tribune should not get special treatment. Upon transfer of ownership, they recommend, the FCC must ensure that the Tribune breaks up its holdings in cities where it is in violation of the cross-ownership rules. Requiring the break up of these combinations will promote diverse views by allowing new owners.

The Benton Foundation works to ensure that media and telecommunications serve the public interest and enhance our democracy. We pursue this mission by seeking policy solutions that support the values of access, diversity and equity, and by demonstrating the value of media and telecommunications for improving the quality of life for all.

Source: In the Matter of Applications for Consent to the Transfer of Control of Tribune Company from Shareholders of Tribune Company to Samuel Zell (MB Docket 07-119) Petition to Deny at page 29. June 11, 2007.

1. Zell once owned radio-network Jacor Communications until it was sold to Clear Channel in 1999. See Zappone, Chris. “Zell buys Tribune Co., Cubs to be sold.” April 3, 2007

2. Tribune also seeks a permanent waiver of the local-TV ownership rule to retain ownership of two Hartford TV stations and The Hartford Courant.

Bondholders Oppose Transfer, Too

Bondholders of the company have also filed a Petition to Deny the transfer. WILMINGTON TRUST CO., representing the dissident bondholders, said that the transfer "is a sham. The warrants (being given lenders in the reorganization) will be worthless to the prospective holders, who will, by definition, be non-U.S. citizens."