Can You Hear Us Now?: Communications Policy and the Criminal Justice System

by Joseph Miller, Esq.

Talk about convergence.  Not only has the Internet changed the way Americans consume content, it is also changing the criminal justice system.

The United States has the highest incarceration rate in the world.  According to the 33-country Organisation for Economic Co-operation and Development (OECD), the U.S. incarceration rate is 760 prisoners per 100,000 population.  Only 3 of the remaining OECD countries have incarceration rates above 250 per 100,000. These include Israel (325 per 100,000), Chile (317 per 100,000) and Estonia (273 per 100,000).  African-American and Hispanic men (3,074 per 100,000 and 1,258 per 100,000, respectively) comprise a disproportionate share of American prisoners, compared to just 459 per 100,000 of white men.

Policymakers should continue to monitor how the ways law enforcement officers use technology may perpetuate flaws in the criminal justice system.  Several developments over the past month shed light on these considerations.


The Fourth Amendment states “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause.” The warrant requirement for law enforcement officers conducting investigations in the physical world is well settled, even as the law surrounding exceptions to the warrant requirement is more complex. However, the extent of Fourth Amendment protection online and on devices is murkier.

The New York Times published an article discussing the patchwork of confusing, and often contradictory, laws around the country governing law enforcement’s warrantless use of cell phone data, including New York City’s practice of keeping cell phone theft victims’ phone data beyond the data need to investigate and prosecute the theft.  The New York City Police Department is also notorious for its “Stop and Frisk” practices.  According to the New York Civil Liberties Union, black and Latino New York residents “made up close to 90 percent of people stopped and about 88 percent of those stops were of innocent New Yorkers.”

To address the challenges of privacy and Fourth Amendment policy in the digital age, policymakers are considering legislation to amend the Electronic Communications Privacy Act (ECPA). ECPA, enacted in 1986, was designed to restrict the ability of the federal government to use computer data and stored electronic communications in investigations.  But ECPA currently requires no probable cause and no warrants for law enforcement to obtain things like stored photographs, data from Facebook pages, and draft documents shared with third parties like Dropbox and Google.

On Thursday, the Senate Judiciary Committee approved an amendment to ECPA that would require police to obtain a warrant before searching suspects’ emails.  The Senate is not anticipated to vote on the ECPA amendment until next year, but this is important progress toward ensuring the Fourth Amendment warrant requirement applies to data and devices.

Recording Police Activity

The past month has also seen an important development in the role personal audiovisual recordings might play in documenting police misconduct.

On Monday, the Supreme Court declined to review a Seventh Circuit ruling that the First Amendment includes the right to record the actions of police officers while they are on duty and in public. Illinois’ eavesdropping law had made recording police officers a felony punishable by up to 15 years in prison. The Seventh Circuit held that “the act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as corollary of the right to disseminate the resulting recording.”

Earlier this year, the City of Boston agreed to pay $170,000 in damages and legal fees to a man, Simon Glick, who was arrested for recording police officers in public. The settlement followed a First Circuit Court of Appeals unanimous ruling that Glick had a “constitutionally protected right to videotape police carrying out their duties in public.”

Prison Phone

Prison Phone Justice

The families of inmates are silent victims.  Incarceration removes a reliable source of household income and separates parents from their children.  One aspect of the effect of incarceration on families is the stratospheric rates telephone companies charge for collect calls made by inmates.

One study conducted by the Southern Poverty Law Center of prison phone rates in Louisiana  found these fees to be 15 times higher (30 cents per minute versus 2 cents per minute) than they are for collect calls made outside prison walls.  In September, FCC Commissioner Clyburn urged FCC Chairman Genachowski to cut prison phone rates. On November 15th, the FCC announced at a rally led by the Center for Media Justice that it would seek public comment on prison phone rates.  Congressmen Henry Waxman (D-CA) and Bobby Rush (D-IL) attended a screening of a new film entitled “Middle of Nowhere” on the Hill earlier this week.  The film depicts the inner conflicts a mother encounters while her husband is serving an eight-year sentence.

Far too many people of color are in prisons in the United States. That makes the use of information and communications technology by law enforcement a matter of particular interest to people of color. The developments discussed here show policymakers taking constructive steps to improve how the criminal justice system uses technology. But information technology—and its uses—evolve rapidly, which means we need careful oversight of how these tools are used in the criminal justice system.

Joseph Miller, Esq., is Deputy Director and Senior Policy Counsel for the Media and Technology Institute at the Joint Center for Political and Economic Studies. More information on Mr. Miller and his work can be found at the Joint Center website.

Media D*versity

by Joseph Miller, Esq.

Media advocacy has always focused on the shortcomings of regulators and media giants.  Although the faults of both regulators and the media industry are significant, advocates rarely discuss the role candidates for national office might play in rousing interest in media diversity among the electorate.

How long should we wait for a regulatory or industry-led initiative to improve media diversity? Despite its mandate under Section 257 of the Communications Act, the Federal Communications Commission has failed to collect and aggregate minority ownership data in a form the public can use.  With the exception of tiny glimmers of change in newsroom diversity, hiring, retention and promotion diversity at top media companies is dismal. Among Diversity Inc.’s Top 50 Companies for Diversity 2012, Cox Communications (#25) and Time Warner (#40) were the only media companies listed. Factoring in companies that are more relevant in a converged media industry, AT&T (#4) and Verizon Communications (#39) were also featured.  But there is really not much need to look further than the senior management teams of top media companies, which are overwhelmingly white (Disney, Comcast, News Corporation, Viacom) despite the fact that minorities comprise 27.6 percent of the U.S. population, to see the lack of racial, ethnic and gender diversity among those who control so much of what we see and hear.

But the most daunting challenge for policymakers is not to confirm whether these disparities exist—everyone knows they do—it is to address the underlying reasons for the lack of a political impetus to address them.

Why don’t we care? Despite the central role of the media in democratic politics, made clear by the record amounts of money the Obama and Romney campaigns have spent on political advertising, media diversity is frankly not that high up on the average American’s priority list.  A recent Time Warner Cable report finds that, while subscriber survey respondents were willing to pay $25 more per month for general, “opinion” diversity, they were willing to pay just $7 more per month for any improvement in “information that reflects the interests of women and minorities.”

The demographics of most media companies’ senior ranks bear little resemblance to the demographic cross-section of the public media executives work tirelessly to reach.  According to 4th, which evaluated front page stories from 38 different newspapers between January and mid-October, 2012, non-white reporters wrote a paltry 9% of stories on the economy, 9.2% of stories on social issues, and 7.3% of stories about foreign policy.  Most startlingly, 98.2% of stories on immigration—an issue that is most contentious with respect to U.S. policies toward Latino immigrants—were written by white reporters. Why is the state of diversity in the media so discouraging? Do the media lack diversity because there is a lack of consumer demand for it? Or is it the other way around—has the media industry suppressed demand for diversity to preserve its control by non-minorities?

This is more than just a chicken-or-the-egg conundrum. The lack of racial and ethnic diversity in the media is a consequence of post-racial politics.

If a candidate perceives a particular initiative will secure a substantial number of votes from a powerful racial constituency, historically that candidate will make the issue resonate with voters.  For some, the race appeal is made using racial code language. Richard Nixon’s White House Chief of Staff, H.R. Haldeman, famously noted: “[T]he whole problem is really the blacks.  The key is to devise a system that recognizes this while not appearing to.”  Thus, while the Supreme Court has encouraged states to pursue race-neutral policies to achieve diversity, politicians have actually turned that doctrine on its head: some politicians have advanced racial-neutral initiatives—such as the “War on Drugs” or the fight against “Voter Fraud”—to perpetuate inequality.

Ohio State Moritz College of Law Professor Michelle Alexander has done extensive research on the means by which some policies without a specific racial component have actually perpetuated the same disparities that were so prevalent during the Jim Crow era. Specifically, Ms. Alexander has argued that, despite the fact that drug crimes were actually declining, the Reagan administration decided in 1982 to pursue Nixon’s idea of a War on Drugs to garner the votes of whites who felt threatened by the advances of the Civil Rights Movement.  President Bill Clinton carried the torch, trying to convince white voters that he would be even tougher on drugs and crime than his Republican predecessors.

The current fight against “Voter Fraud” is another campaign some believe is racially-encoded and designed to suppress minority votes. These kinds of race-neutral campaigns leave their opponents in the unenviable position of being on the defensive having to assert a racial impact in an environment in which the mere mention of race is frowned upon.

The post-racial nature of today’s political discourse precludes politicians from addressing race head-on. Politicians are unlikely to explicitly address race in their campaigns as there is a fair risk that doing so would be considered taboo—or, at best, impolite—and alienate voters.  Accordingly, media diversity has been relegated to the bottom of the pile of campaign initiatives candidates are likely to advance.  This is unfortunate since politicians play such a powerful role in legitimating even the most dubious platforms.

Joseph Miller, Esq., is Deputy Director and Senior Policy Counsel for the Media and Technology Institute at the Joint Center for Political and Economic Studies. More information on Mr. Miller and his work can be found on the Joint Center website.

Political Ads: Do Minority Media Outlets Benefit?

by Joseph Miller, Esq.

With less than two weeks remaining before Election Day, the presidential candidates and Super PACs have spent nearly $1 billion on advertising, enriching broadcast station owners in the wake of the Supreme Court’s Citizens United decision.  Combined total outside spending by Super PACs placing ads on behalf of the candidates has topped $800 million. The Washington Post reports that over the last three weeks, the Obama and Romney campaigns have spent $40 million and $49 million, respectively, on advertising time in swing states.  But, without unraveling confusing datasets from at least two separate federal agencies, it is almost impossible for the average person to determine how much of that money is being spent on broadcast stations owned by minorities.

While the Federal Elections Commission (FEC) requires anyone buying broadcast advertising time in excess of $10,000 on behalf of a political candidate to report, within 24 hours, the “amount of each disbursement of more than $200 … and the identification of the person to whom the disbursement was made,” it is almost impossible to cross-reference this data with data the Federal Communications Commission (FCC) collects on minority station ownership.  First, the name of the individual listed in the FEC records would have to match the name of the station owner in the FCC’s database.  If the names do not match, one would then need to ascertain whether the individual listed in the FEC’s records is a minority owner by sifting through public records, and possibly other documents, which might still prove inconclusive.

Scholars have noted the unwieldy nature of evaluating the FCC’s records alone, not to mention attempting to cross-tabulate that data with the data of other agencies.  In a November 2009 study, the Minority Media and Telecommunications Council (MMTC) and Professors Catherine Sandoval and Allen Hammond of the Santa Clara University School of Law recommended that the FCC improve its databases in order to “enhance the ability to analyze [minority media ownership] trends over time and among a wide range of broadcasters.”

Another layer of the dynamic between political advertisers and minority media outlets is the FCC’s ban on “no-urban dictates” and “no-Spanish dictates” (NUDs/NSDs)—the practice of advertisers bypassing stations targeting black and Latino audiences.  A 2007 FCC order outlawed the use of NUDs/NSDs by requiring commercial broadcasters to include in their license renewal applications an affirmation that their agreements with advertisers did not intentionally discriminate on the basis of race. Many polls show that black and Latino voters favor President Obama by significant margins. On this basis, it is conceivable that the campaigns may have concluded that allocating their broadcast advertising budgets elsewhere would likely deliver a more efficient schedule.

Still, although targeting specific audiences is a fundamental aspect of broadcast advertising transactions, it is certainly worth considering whether any allocation of political spending away from urban- and Latino-targeted radio and tv stations might be excessive. For example, if Arbitron or Nielsen research shows that a station targeting a predominantly minority audience has lower ratings relative to a competing mass appeal station, a campaign official might, rather than failing to further consider the station targeting a predominantly minority audience, seek to discover whether it boasts a large number of minority listeners who are undecided voters.  Similarly, campaign officials might also seek to evaluate whether stations targeting a predominantly minority audience may be ripe for get out the vote (GOTV) operations.  Current concerns about voter suppression activities make the case for placing ads educating minority listeners about their voting rights.

Political advertisements, especially those placed during presidential election seasons, contribute a significant amount of revenue to stations’ bottom lines.  Minority-owned stations should suffer few impediments to their fair share of those revenues.

Joseph Miller, Esq., is Deputy Director and Senior Policy Counsel for the Media and Technology Institute at the Joint Center for Political and Economic Studies. More information on Mr. Miller and his work can be found at the Joint Center website.

How TV May Make Your Kids Smarter

by Joseph Miller, Esq.

Wasteful government spending is a legitimate problem that should be addressed, but it should not be approached with blinders on.  Many government-funded programs have been associated with positive socioeconomic outcomes.  PBS is an example.

Research on television viewing by children can often seem conflicting and confusing to parents, educators, and policymakers.  It is important, though, to distinguish between the effects of children spending too much overall time watching programming on television, computers, tablets, and smartphones, and the effects of the context in which children are exposed to content.  Accordingly, the American Academy of Pediatrics recommends no screen time for children under age 2, and no more than 2 hours of “quality programming” for children over the age of 2, preferably with parents watching with their children.

A robust body of research highlights some alarming statistics about the amount of video content children are exposed to. In 2005, a study published in American Behavioral Scientist found that children between the ages of 6 months and 6 years spend 2½ hours per day watching media content.  The study also found that infants are exposed to 1 to 2 hours of media content per day. Another study by Northwestern University released in 2011 reported that youth between the ages of 8 and 18 spent 8½ hours consuming media content each day, compared to a staggering 13 hours for minority children.  A recent University of North Carolina-Wilmington study further concluded that children spend an average of 4 hours per day with the television on in the background which, in turn, distracts children from play.  This excessive media usage has been tied to negative consequences in both health—namely, tobacco use, childhood obesity, and unhealthy sexual behavior—and academic achievement.  One study by the University of Virginia correlated Nickelodeon’s SpongeBob SquarePants with impeded academic performance.

The logical response from parents in light of these statistics would seem to be that they should ban their children from viewing all forms of media content.  Indeed, President Obama has implored us on more than one occasion to simply “turn off the TV” (see here and here). Policy makers may also view this research as a justification to point to public broadcasting as an example of wasteful government spending. These approaches, while expedient, ignore the role of content in producing outcomes the majority of Americans find favorable.  In short, these responses ignore context: the degree to which the media being consumed foster interactive, rather than passive, viewer engagement, and the extent to which such programming may actually improve circumstances when consumed in moderation and when paired with comprehensive educational strategies.

PBS is one of the strongest examples of quality programming that has been associated with improved educational outcomes:

  • In 2011, PBS won 8 Parents’ Choice Awards for Television.
  • A recent University of Pennsylvania/PBS Kids study revealed that children who watched Super WHY! scored 46% higher on standardized tests than those who did not.
  • A Joan Ganz Cooney Center study showed that PBS Kids’ “Martha Speaks Dog Party” app improved vocabulary by up to 31% in children ages 3 to 7.
  • Several studies have shown PBS Kids programming to be associated with positive impacts on children overall, but especially on children from low-income backgrounds or who are at risk of reading failure, among which children of color are disproportionately represented.

Anyone who is genuinely concerned about education and concerned about racial and socio-economic achievement gaps should also be concerned about PBS’ continued viability.

Joseph Miller, Esq., is Deputy Director and Senior Policy Counsel of the Joint Center’s Media and Technology Institute. More information on Mr. Miller and his work can be found on the Joint Center website.

Is VH1 Cannibalizing BET?

by Joseph Miller, Esq.

Two reports released last week–African-American Consumers: Still Vital, Still Growing by Nielsen and Basic Cable Network Segmentation Toward Minorities and Other Niche Audiences in a Digital World: Preliminary Results of an Empirical Study of Cable Advertising  by Haizhen Lin, David Waterman, and Sung Wook Ji–shed light on the effect of  “market segmentation” on minority oriented cable network programming.  The media industry as a whole has been trending toward market segmentation for some time, as the growth of cable programming, as well as the increased capabilities of internet and digital platforms, have facilitated hyper-targeted advertising models.  This trend, however, has resulted in the cannibalization of black-oriented cable networks owned by media conglomerates that also own mass appeal cable outlets.

During the 1970s, when the cable industry was still in its infancy, many policy makers and others lauded the potential of cable to increase minority-oriented programming: In 1973, Black Enterprise predicted that cable would be the final opportunity for minorities to acquire a stake in the media industry.  Nevertheless, according to Lin, Waterman and Ji, of the three cable networks specifically targeting African-Americans, only one–Viacom-owned BET–consistently features a high number of African-American viewers overall and delivers a large number of African-American viewers to advertisers for each advertising buy.  The other two networks–Centric (also owned by Viacom) and TV One (owned by Radio One and NBCUniversal)–have predominantly black audiences, but have not been as successful as BET at delivering a consistently high number of African-American viewers for each buy.

According to the Nielsen report “[t]he most popular programming in African-American households are those starring Black characters, sports, variety shows with diverse contestants, and award shows.” As such, American Idol Audition Special; New Year’s Rockin’ Eve, Part 1; The Game, Season 5; Let it Shine; and Whitney Houston: Her Life were the top 5 programs most watched by African Americans age 2+, total day, between 12/26/11 and 6/24/12.  In primetime, seven of the top 10 prime time shows watched by African-Americans ages 18-49 were broadcast on either VH1 or BET.  Of those seven, only 2–The Game, Season 5 (at number 1) and Let’s Stay Together, Season 2 (at number 6) were shown on BET:

  1. The Game, Season 5 (BET)
  2. Love and Hip Hop, Season 2 (VH1)
  3. Basketball Wives, Season 4 (VH1)
  4. Single Ladies, Season 2 (VH1)
  5. T.I. and Tiny (VH1)
  6. Let’s Stay Together, Season 2 (BET)
  7. Whitney Houston: Her Life (CNN)
  8. La La’s Full Court Life, Season 2 (VH1)
  9. Scandal (ABC)
  10. Braxton Family Values (WE: Women’s Entertainment)

Super Bowl XLVI was the highest rated sports show watched by African-Americans age 2+, with 12.47 million African-Americans tuning in.  Further, Lin, Waterman and Ji also report, using Nielsen data, that NBA-TV, SOAPnet, VH1, Fuse, Lifetime Movies, Nick Toons, and Oxygen Media –all mass appeal networks–rounded out the top 10 cable networks watched by African-Americans.

This data suggests that competitive pressures from mass appeal media outlets that have successfully converted African-American viewers by offering better produced programming than BET, Centric and TV One have led Viacom’s VH1 to “cannibalize” BET and Centric to keep VH1 competitive against mass appeal competitors.  “Cannibalize” is a marketing term describing the scenario in which one or more of a corporation’s subsidiaries eat away at the profits of one or more of the corporation’s other subsidiaries. Shows featuring Black characters have been a sweet spot for BET for some time.  Further, as described above, BET has in some cases delivered African-American viewers to advertisers as efficiently as “mass appeal” networks. But Lin, et al. also showed, not surprisingly, that African-Americans were much more likely to watch mass appeal targeted networks, than whites were to watch networks targeting African-Americans and Latinos. Lin et al. also concluded that  “[w]hile content itself appears to have significant effects on black and Hispanic audiences, production investments appears [sic] to be a substantial, common influence on all racial and ethnic groups.” In other words, no viewer–irrespective of their race or ethnicity–wants to watch television shows that are poorly produced.

Accordingly, it may be argued that Viacom is incentivized to: 1) place the most popular shows featuring African-American characters on VH1, rather than BET and Centric, ostensibly to garner a more racially and ethnically diverse audience in prime time, and; 2) disproportionately allocate production resources toward its mass appeal networks.

In addition to studying the consequences of having an increasingly mass appeal cultural frame shaping our perceptions, policy makers should consider the communications policy implications of cannibalization.  Specifically, cannibalization seems to be a symptom of excessive concentration of media ownership.  The FCC should investigate the extent to which the shifting of production resources away from minority-oriented networks toward mass appeal networks is a problem that disproportionately harms potential owners, minority audiences, and employees, such as advertising salespeople, whose compensation is tied to the profitability of cannibalized networks.  The effect of cannibalization on employee performance would be especially enlightening if the assumption that a higher proportion of people of color work at cannibalized networks is proven correct.

Joseph Miller, Esq., is Deputy Director and Senior Policy Counsel at the Joint Center Media and Technology Institute. More information on Mr. Miller and his work can be found at the Joint Center website.

Paula Kerger Quietly Leads the Way

by Joseph Miller, Esq.

Last week, I had the privilege of sitting down with Paula Kerger, President and CEO of PBS. We met at her office at PBS headquarters in Arlington, Virginia. 

This is a serene office. I noticed your guitar by the window. Do you play?

The guitar was a gift from our station in Buffalo, WNED, who were instrumental (pun intended) in organizing that city’s guitar festival. Our colleagues at the station were aware of my adolescent ambition to be the next Joni Mitchell. This was only an ambition, however, as my guitar skills are quite limited and my voice is suited only for the shower.

PBS won 32 Emmy Awards last year. What do you attribute that success to?

PBS is dedicated to harnessing the power of media to change lives. That has been our mission for more than 40 years and it guides our work every day. It leads us to present the best content we can offer in every genre. This includes substantive, in-depth journalism; thought-provoking history and science; and arts programming that allows everyone to have a front seat to outstanding work from across the country and around the world, as well as curriculum-based, research-driven programming that helps children build critical skills, preparing them succeed in school and life.

Our content is unlike anything offered elsewhere in the television landscape. We are honored that the Academy of Television Arts and Sciences recognized this so generously. I was particularly proud that the Emmys we won were for many types of programming – 12 Daytime Emmys for children’s series, 14 Primetime Emmys for everything from drama and arts to history, and six News and Documentary Emmys.

You were the Station Manager of Channel Thirteen in New York for thirteen years. Now you are President and CEO of PBS in Washington. Media is a competitive industry. How has the way you have navigated your career been different between the two cities?  Is the nature of competition different between the two cities?

Washington and New York are indeed two very different cities, but my work at PBS is actually more focused nationally. Most of my time is spent considering what will best serve our public television audience in communities across the country, ensuring that the work we deliver meets the needs of citizens.

Let’s talk about Independent Lens and POV. There have been some schedule changes to those shows recently. They were shifted from Tuesday nights at 10 PM to Thursday nights at 10 PM, which is viewed as a less desirable timeslot. Some have said this is evidence that PBS is falling on its sword, so to speak, and reneging on its commitment to independent programming in favor of mass appeal shows. What’s your perspective on that? 

PBS is fully dedicated to independent film and the diversity of content they provide. Just last year, approximately 120 independent productions appeared in the PBS primetime schedule. For decades, PBS has been a destination for a wide spectrum of voices, points of view, and distinctive visions.

We recognize the many outstanding awards earned by the independent filmmakers we have presented. Their acclaimed work contributes immeasurably to our schedule.

PBS, POV, and ITVS share a common commitment to independent film and are dedicated to working together towards our shared goals. Our recent joint conversations have been productive and we agreed to alternative scheduling options for Independent Lens and POV.  We plan to discuss these updates at PBS’ Annual Meeting, which is May 14-17 in Denver, CO.

I’m proud that five of the six News & Documentary Emmys I mentioned earlier were for POV – which won four awards – and Independent Lens. And earlier this month, PBS garnered seven George Foster Peabody Awards, more than any other organization. This is a competition for television and radio that recognizes “excellence, distinguished achievement, and meritorious public service.” Two honors went to POV and one to Independent Lens this year.

Gwen Ifill was inducted into the National Association of Black Journalists (NABJ) Hall of Fame this year. Jim Lehrer recently announced his retirement after 37 years as the lead anchor of Newshour. What are the plans for Newshour going forward?

One of the best aspects of my job is that I get to work with such talented, committed people. Gwen and Jim are incomparable journalists and I am so grateful for their work and all that they bring to PBS. While Jim has retired, he is still an integral part of PBS Newshour.

The series has undergone a number of successful transitions in its long history. It first launched in 1975 and has grown and changed over the years while retaining a steadfast commitment to outstanding reporting that has never altered.

I am confident in the show’s future because of the outstanding leadership there. Not only does Jim continue to guide the series, even though he has stepped out of his daily role, the recent appointment of Bo Jones as the CEO last October demonstrates that the program is in good hands.

And, of course, Newshour continues to boast one of the most talented, hard-working, and respected journalistic teams on television. The work that Jeffrey Brown, Gwen, Hari Sreenivasan, Ray Suarez, Margaret Warner, Judy Woodruff, and the rest of the Newshour team do every day continues to meet the very high expectations viewers have had of the program for decades.

PBS has done a fantastic job with children’s programming–it won 15 Parents’ Choice Awards last year. And the beauty of it is that you and PBS have had laser-like focus on addressing the developmental and social needs of all children, especially those in low-income communities. One study even showed a positive correlation between Super WHY! and higher test scores. Tell me more about PBS’ strategy for children’s programming and how it plays into improving educational outcomes in Science, Technology, Engineering and Mathematics (STEM).

First of all, thank you.

As I said earlier, PBS’ mission is to harness the power of media to change lives. Of course, television has tremendous power to reach children – especially those who can’t attend preschool.

We have all read that millions of children lack the basic early math and literacy skills necessary to succeed in school. We’ve been working with the Department of Education and the Corporation for Public Broadcasting for a number of years on the Ready to Learn (RTL) Initiative to develop curriculum-based programming that helps children build critical skills. We work with independent researches to ensure that our content measurably improves children’s proficiency in fundamental areas.

You mentioned the Super WHY! research, but actually there are several independent studies that empirically demonstrate that PBS programs help to close the achievement gap in a measurable way.

We have developed in innovative blend of media across all platforms – TV, online, mobile, and more – and related community engagement activities that help children learn to read with series such as The Electric Company, Martha Speaks, Sesame Street, and Super WHY!

Aided by an additional round of funding from the Department of Education, we are taking what we’ve learned about teaching literacy skills and applying it to the STEM (Science, Technology, Engineering, and Science) curriculum, the mastery of which will be of critical importance to the future of today’s children.

Programs such as The Cat in the Hat Knows a Lot about That, Curious George, Dinosaur Train, and others open up the worlds of math and engineering to children with content that teaches numbers, counting, addition, subtraction, data analysis, graphing, measurement, shape recognition, pattern creation, and other key topics.

We also offer a wealth of tools for parents and teachers – in both English and Spanish – that offers information and advice about using our content at home or in the classroom to get the most out of our programming, online games, apps and other content with such resources as PBS KIDS Lab and PBS KIDS Island.

One thing we never lose sight of is that the content has to be entertaining as well as educational. If the program, game or app doesn’t draw the child in, it doesn’t matter how effective the curriculum is. That’s why I am so proud of our announcement earlier this week that in February 2012 the current PBS KIDS weekday block of preschool programming took the top four spots for kids ages two to five for the first time, according to Nielsen NPower national program ratings. Among kids ages two to five, Curious George was number one, The Cat in the Hat Knows a Lot about That and Super WHY! tied for second place and Dinosaur Train placed fourth.

PBS KIDS also drew record audiences online that month; February marked the first time was the number one kids’ site for both unique viewers and videos viewed.

Reach is a key factor in our mission. Not every child has access to a computer or even, necessarily, to school in the earliest years, but almost every child in America has access to a television. In fact, according to Nielsen reports, 79% of all children ages two to 11 watch PBS in the course of a year.

Is there is one thing you would like to tell policymakers in Washington about public broadcasting, what would it be?

That we are here to help meet the nation’s priorities in a way that delivers outstanding return on the federal investment.

Each day, the effective, efficient work of PBS stations help educate America’s children, train teachers, assist communities and first responders during local emergencies, present in-depth journalism that informs citizens about important issues in their neighborhoods and the around the globe, make the arts accessible to all citizens regardless of where they live, and more. We provide a place where ideas can be explored and discussed in respectful, civil way, which is a critical role in any democracy.

Public broadcasting’s local/national structure has both the broad reach and deep local roots to serve Americans in a way no other enterprise can match. Earlier, I mentioned the number of children who watch PBS in a year. It’s also worth noting that Nielsen data show that 91% of all US television households tune into PBS local stations over a twelve-month period.

In short, we are the nation’s largest classroom, its biggest stage for the arts, and a trusted window to the world, all for the cost of about $1.35 per person.

This is a cost that the American public call the second best use of their tax dollars, outranked only by military defense in a recent national study. This research also found PBS is considered the most trusted public institution in the country.

We are grateful for the trust the American public places in our work and are proud of the way we leverage the nation’s investment to deliver content and services that so many people rely on each day.

Thank you for taking the time to speak with me today, Paula.

You’re welcome.

Joseph Miller, Esq. is Deputy Director and Senior Policy Director of the Media and Technology Institute of the Joint Center for Political and Economic Studies in Washington, DC.  More information on Mr. Miller and his work can be found at the Joint Center website.

Idea Theft and Black Unemployment

By Joseph Miller, Esq.

Black unemployment is a symptom of persistent racial discrimination and skills gaps, but competition and trade policies play a role in unemployment that policy makers too often overlook.  Information technology (IT) and intellectual property (IP) theft is a significant threat to U.S. companies’ ability to generate revenue and thereby jobs.  Earlier this week, U.S. Senators Mary L. Landrieu (D-Louisiana) and Olympia J. Snowe (R-Maine), Chair and Ranking Member of the Senate Committee on Small Business and Entrepreneurship, along with a bipartisan group of 14 other committee members, wrote a letter to the Federal Trade Commission (FTC) urging it to assist 36 state attorneys general in confronting the growing problem of IT and IP theft from U.S. companies by foreign manufacturers.

Some have noted that many African Americans are already grappling with a silent economic depression.  While the nation’s employment picture has slowly improved over recent months to an unemployment rate of 8.3 percent in February 2012, the unemployment rate for African-Americans still stands at 14.1 percent, which is up from 13.6 percent in January.  This is significantly higher than the Great Recession peak overall unemployment rate of 10.2% in October of 2009.

The fates of African Americans have been tied to the manufacturing sector since the end of World War II.  John Schmitt and Ben Zipperer of the Center for Economic and Policy Research have noted that manufacturing jobs “built the black middle class after World War II.”  However, between 1979 and 2007, the share of African Americans working in manufacturing fell from 23.9 percent to 9.8 percent.  During the Great Recession’s incipient stages between December 2007 and December 2009, the manufacturing sector experienced a 14.6 percent decline in employment–among 13 service sector industries, only construction experienced a steeper decline in jobs during that period. African-Americans were among those workers who were hardest hit during this period and are now under-represented in manufacturing.

Improving African-American unemployment trends will require a multi-agency effort.  The U.S. Department of Labor and other agencies have already granted a consortium of 10 universities in South Carolina and an HBCU $20 million to develop 37 new online courses in emerging jobs in manufacturing and other key sectors.  While this approach addresses skills gaps, the FTC can do its part by addressing IT and IP theft and ensuring the competitive landscape remains conducive to job growth.

Joseph Miller, Esq. is Deputy Director and Senior Policy Director of the Media and Technology Institute of the Joint Center for Political and Economic Studies in Washington, DC.  More information on Mr. Miller and his work can be found at the Joint Center website.

Jazz Has Endured Despite the Odds, Can Public Media?

by Joseph Miller, Esq

The FCC’s media ownership rules have never resulted in commercial programming that fully reflects local communities.  Local newscasts make up only a small portion of local radio and television broadcast schedules.  The vast majority of other programming is national, network programming and syndicated shows.  While radio stations have more of a “local feel” than television, their most popular news programming is often syndicated, and music formats are programmed based on national sales of music recordings.

Public media is critical to filling the void left by commercial broadcasters.  But several structural changes have threatened the ability of public media to thrive and provide local content.

Newark, New Jersey’s WBGO 88.3FM “Jazz 88” is a prime example both of public media done well and what we stand to lose if public broadcasting is not preserved.  Founded in 1979, WBGO was New Jersey’s first public radio station.  While WBGO is based in the predominantly African-American city of Newark, it can be heard in all five New York City boroughs, north of the city in Rockland and Westchester Counties, Long Island, and parts of Connecticut.  The station now streams its broadcasts on the Internet and boasts membership from listeners around the world.  Despite its far flung reach, WBGO has never lost sight of its mission to provide programming aimed at residents of the City of Newark.

But WBGO has also moved its antennae transmitter to Manhattan.  Some are worried the move will result in less Newark-specific programming.  This is not inconceivable.  The precipitous decline in the mainstream popularity in jazz (see the latest Recording Industry Association of America data here) and resulting listening attrition could pressure WBGO to seek to widen its audience base by increasing its New York-specific content.  But this hasn’t happened – yet.

Meanwhile, the state of New Jersey has decided to exit the public broadcasting business altogether.  Earlier this year, New Jersey Governor Chris Christie signed off on a deal to transfer the operations of the New Jersey Public Television Network to New York’s WNET.  New York Public Radio has also acquired four of New Jersey’s state-owned radio licenses.  Philadelphia’s WHYY has acquired another five of those licenses.  Some advocates have fought to ensure the new owners will continue to program these properties with local, New Jersey content.  WNET is contractually required to program New Jersey Public Television and Radio (“NJN”) with New Jersey-based content.  But the term of the deal is only five years.  What happens after those five years have expired is anyone’s guess, and the fates of the radio properties now owned by entities in New York and Philadelphia remain uncertain.

Congress has also sought to end public broadcasting.  Last year, Republican legislators pushed two bills to defund National Public Radio (NPR) and the Corporation for Public Broadcasting (CPB).  The bills failed after significant public outcry, but the effort brought public broadcasting to a precipice, and there is no reason to conclude that Congress will pass up the next opportunity to defund public broadcasting.

The incentives for public media and those of commercial media are quite different. Media companies must program their stations in a way that generates profits, and with advertising dollars moving farther away from traditional, broadcast-only media outlets, especially radio, and toward multi-platform brands that engage across different platforms, one can expect less localism from the private sector – not more. Public broadcasting doesn’t have those same kinds of constraints because their mandate is to fill the void left by commercial media in exchange for tax incentives.

Mass appeal formatting is a no-brainer for large media companies—it is easy to produce and control. Reinforcing this is the fact that our public institutions–courts–have deemed mass-appeal approaches to be most consistent with what the Founders envisioned.

In Lutheran Church Missouri-Synod v. FCC, Judge Silberman, writing for the DC Circuit Court of Appeals, struck down the FCC’s Equal Employment Opportunity rules, reasoning that even considering racially based differences among station owners is antithetical to the Constitution and to democracy.  In her famous dissent in Metro Broadcasting v. FCC, Justice O’Connor questioned whether diverse media ownership correlates with diverse programming. Justice O’Connor reasoned that broadcasters, irrespective of their race, would respond to what the market dictates.  But the commercial market dictates mass appeal content.

Meanwhile, commercial media has become less local not more.  If we lose public broadcasting, we will lose an important source of local content that is unconstrained by the need to be mass appeal.

Joseph Miller, Esq. is Deputy Director and Senior Policy Director of the Media and Technology Institute of the Joint Center for Political and Economic Studies in Washington, DC.  More information on Joseph Miller and his work can be found at the Joint Center website.

ESPN, Freedom of Speech, and Jeremy Lin

by Joseph Miller, Esq

When ESPN suspended Max Bretos and fired Anthony Federico for using the phrase “chink in the armor” in their coverage of Jeremy Lin and the New York Knicks’ loss to the New Orleans Hornets last Friday, righteous indignation about the dwindling First Amendment ensued.  That predictable response is a symptom of the low standard that is set for hosts and pundits.  But the First Amendment has nothing to do with this.  ESPN’s decision was more likely motivated by the fact that it wanted to avoid an employment discrimination charge by its Asian-American employees.

Kevin Ota, ESPN Digital’s Director of Communications said as much:

“We again apologize, especially to Mr. Lin. His accomplishments are a source of great pride to the Asian-American community, including the Asian-American employees at ESPN.” [emphasis added]

Incendiary talk show host Glenn Beck, who left Fox News after his primetime show lost 400 advertisers and suffered a nearly 40 percent ratings decline  following efforts to boycott the show, took to his internet tv station, Glenn Beck TV (GBTV), to defend Mr. Bretos and Mr. Federico.

“Freedom of speech … What they do is they slowly but surely take away … they make you afraid to say something,” Mr. Beck said about “the left.”

“Freedom of speech is in danger here more than anyplace in the world.”

Title VII of the Civil Rights Act of 1964 prohibits discrimination against employees on the basis of “race, color, religion, sex, or national origin” with respect to their “terms, conditions, or privileges of employment.”  When Congress proscribed discrimination with respect to the “terms, conditions or privileges of employment,” it intended to prevent all forms of workplace discrimination, including discrimination creating a hostile or abusive working environment (Meritor Savings Bank v. Vinson).  A workplace “permeated with discriminatory intimidation, ridicule, and insult” that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment” creates a hostile or abusive working environment and thus violates Title VII.  However, there is no requirement that the discrimination lead to serious physical or psychological harm to the employee (Harris v. Forklift Systems, Inc.).  Whether a working environment is indeed hostile or abusive is determined from the perspective of a reasonable person (i.e. a jury).  The same standard applies in the context of race (National R.R. Passenger Corp. v. Morgan).

Eighteen eighty-four in Tennessee—during the Jim Crow era—that’s the earliest case I could find saying that employers, as long as they don’t break the law, can fire employees for any reason (Payne v. The Western & Atlantic Railroad Company).  That far predates the start of Mr. Beck’s vast, left-wing conspiracy, which he usually says came about around the time of Hitler.

ESPN was enforcing the law.  Employers are not subject to the free speech provisions of the First Amendment, which prohibits the government from abridging the freedom of speech.  ESPN was free to interpret the law in any way it thought prudent to prevent the creation of a hostile work environment that would lead to an Equal Employment Opportunity Commission (EEOC) charge.  For example, if ESPN had taken no action, it ran the risk that supervisors would have felt emboldened to harass their Asian-American employees. In that case, ESPN would have done nothing to prevent creating a hostile and abusive work environment and would therefore have exposed itself to vicarious liability for the subsequent acts of the supervisor.

ESPN was following the letter of the law and the EEOC’s guidelines for Title VII compliance.  After the Supreme Court’s decision in the now infamous Citizens United v. Federal Election Commission, in which it rejected corporate spending limits in political campaigns, its tolerance for hate speech (Snyder v. Phelps), and the fact that Mr. Beck lasted at Fox News as long as he did, it is doubtful that Mr. Beck is really concerned about the United States’ place in the world when it comes to free speech.  Perhaps it was Emancipation that Mr. Beck and others think was the catalyst of the vast plot they can’t seem to define.

Joseph Miller, Esq. is Deputy Director and Senior Policy Director of the Media and Technology Institute of the Joint Center for Political and Economic Studies in Washington, DC.  More information on Joseph Miller and his work can be found at the Joint Center website.

Wireless Taxes: Extra Cash You Don’t Have in Difficult Times

by Joseph Miller, Esq

“This tax, that tax, what do they all mean?  Well, I guess I have to pay them if I want to keep this phone.”  Sound familiar?

Earlier this month, the House of Representatives passed the Wireless Tax Fairness Act of 2011, which would freeze any increases in state and local taxes on wireless services.  Now that the House has passed its version of the bill, the Senate should follow suit and pass this legislation.  Both chambers should consider passing a similar measure—the Digital Goods and Services Tax Fairness Act of 2011—which would prevent new taxes on digital goods and services.  Digital goods such as apps and e-books do not burden state resources in the same way that physical goods and services do, and so they should not be taxed at the same rate.

Preventing tax increases on wireless services is a small but significant step toward ensuring that broadband remains affordable for low-income consumers who are disproportionately people of color.  Increases to wireless bills that may seem slight to middle-class and upper income consumers can be enough to cause low-income consumers to cancel or forego their wireless service.  For example, a recent paper by Glenn Woroch estimates that adding $4.17 to the average wireless bill of $47.21 would lead to a 7% drop in wireless subscribership levels.

Three of the top 5 states with the highest wireless tax rates are home to large cities with African-American and Latino populations exceeding the national average.  In some states, wireless service taxes are more than twice the sales tax placed upon physical goods.  New York, for example, has the highest wireless service tax rate (17.78%) among states with majority-minority cities.  Contrast this with New York’s state-wide sales tax rate of 8.25%.  Other such states include Florida (wireless service tax: 16.57%/statewide sales tax: 7.25%) and Illinois (wireless service tax: 15.85%/statewide sales tax: 9%).

Congress should prevent increases to state taxes on digital goods and services as well.  The Joint Center for Political and Economic Studies has reported that African-Americans (32%) and Latinos (29%) are more likely than white Americans (23%) to download apps to their cell phones.  Further, according to Nielsen, 45% of Latinos and 33% of African-Americans own smartphones, as compared to 27% of white mobile users.  And what would the apps market be without smartphones?

Smarter devices and services have made quality goods and services more accessible to low-income consumers.  However, a regressive tax mechanism applied to wireless service, digital goods and digital services would further repress this potential utility of mobile broadband.  For example, several online services can assist low-income consumers in buying groceries if they live too far away from well-stocked and more reasonably priced supermarkets.  Previous studies have shown that many low-income, urban neighborhoods are “food deserts” without feasible access to stores with an array of quality produce and meats.  Online services, such as Peapod, deliver quality meats, seafood and produce to consumers beyond the one-mile radius of partnering supermarkets. Last week, Amazon debuted a new service that allows consumers to purchase basic groceries—including coffee, cereal, meat, and seafood—with few geographic restrictions at all.  Thus, while further raising wireless taxes may create a revenue stream to fund other state and local initiatives, the gains from those initiatives will be negated by nudging low-income consumers toward purchasing lower quality goods at higher prices, and thereby exacerbating negative health and economic outcomes.

Comprehensive and equitable tax policies are absolutely critical for creating a mobile broadband environment that is more conducive to improving conditions in low-income communities.

If you are interested in learning more about the effect of excessive state and local taxes on wireless service and digital goods and services, read the Joint Center for Political and Economic Studies’ report released ahead of yesterday’s House vote.

Joseph Miller, Esq. is Deputy Director and Senior Policy Director of the Media and Technology Institute of the Joint Center for Political and Economic Studies in Washington, DC.  More information on Joseph Miller and his work can be found at the Joint Center website.