Tag Archives: law

What do you do with a BA in History?

Today I found myself in a very familiar situation. Someone’s brother/sister/friend/self is thinking of going to law school.

“No!” Evan yelled, as the patrons of Inversion coffee looked up slightly to see what the commotion was, especially that one cute girl who was like totally checking him out. “Don’t do that!”

“Why not?”

“Because the legal economy is shit. It isn’t a guaranteed job. Unless you know exactly what you want to do, or are going to a very top law school, you’re risking throwing away lots of time and money.”

“Well what’s a good job for someone with a degree in History.”

I don’t know.

Twitter had some ideas, though.

Well, right now I’m doing it backwards.

First is supposed to come the attempt at fulfilling the dream career. Work for the Thresher forever? Opinion journalism? Comedy writing?

Then, if that fails, go for the pragmatic moneymaking operation with the lifelong goal of a steady, if possibly rewarding, career. Law school!

Of course, I did it backwards. So here I am, a member of the Texas bar (once they get my check) trying to freelance write and fulfill my eudaimonic purpose.

But first I have to face the same problem I always have: Getting my butt in the chair and freakin’ writing. (Not to mention all the half-written blog entires)

So what is the plan C after the plan A after the plan B? I guess Twitter has the answer: History teacher.

Tyrannical Houston Tow Trucks, and what we can do

Tow Trucks in Houston

Today, the Houston Press had a great blog entry about tow trucks. Specifically, how they act above the law, like a hoard of marauding bandits who regularly break into cars so that they can steal them and hold them hostage until owners pay outrageous fees.

Tow truck drivers in Houston can break into your car in order to tow it — against state regulations — and here’s why: Law enforcement ain’t gonna stop ’em.

We learned this by following up on an e-mail from a guy who says he watched a driver for Fast Tow jimmy the locks on an SUV in order to get inside and secure the vehicle for towing. (The truck was parked on a portion of the road that, at that time of night, was a no-parking zone). It made us wonder: is this legal? Should be a fairly simple thing to find out, no? Boy, were we wrong.

The blog’s comments section is filled with personal anecdotes about unscrupulous tow truck drivers who jimmy (aka break into) cars to make towing easier. Tow truck drivers will even wait and watch someone get out of a car and then go tow it, and then demand a bribe if caught by the owner.

A Semi-Personal Anecdote about Towing in Houston

While blog comments are not necessarily the most reliable sources, they certainly fit my own experiences. One of the best stories I have heard was from my college roommate Eric.

He had gone downtown for something or other, and parked in one of those parking lots where you slip the right amount of money into a little slit that corresponds with the number of the spot where you parked your car. This Rice University engineer was not one to cut corners or break the rules, but when he returned he found his car had gone missing. If I remember the story correctly, at first he assumed it was stolen, but then realized it had probably been wrongly towed. After getting a ride home, he contacted the towing company whose number was posted at the parking lot, attempting to locate he car. He tried to explain that it had been wrongly towed, but to no avail. Eventually, he had to pay the towing fee, which I believe was somewhere over $200.

The tow truck companies messed with the wrong guy.

He did some quick research, and decided to file for a hearing against the tow truck company. Well, of course, he won. Part of prevailing in such a hearing means he was awarded:

Court costs to the prevailing party;

The reasonable cost of any photographs to an owner or operator of a vehicle who prevails;

An amount equal to the amount that the towing charge or booting removal charge exceeded fees for non-consent tows; and,

Reimbursement of fees paid for vehicle towing and storage or removal of a boot.

Despite having prevailed in the hearing, my roommate had quite some difficulty getting the tow company to pay him back. Eventually, he had to get a sheriff to show up at the towing facility and force the company to pay back the money they basically had stolen.

Alas, not everyone is as resourceful and driven that Rice engineer roommate.

Indeed, in a gun-friendly place like Texas, it is easy to imagine such a situation turning violent. Someone walks out to his or her car, only to see a stranger breaking in through the window, preparing to tow it away. I know some small part of me would want to be able to pull a gun on such scum.

After all, the purpose of parking and traffic laws should not be to line to pockets of these disgraceful companies, but rather to maintain the safety of our roadways, aesthetics of our neighborhoods, and business interests of our parking lots. If someone offers to move his or her vehicle, and perhaps pay whatever fine exists for the wrongful parking, then that should be enough to fulfill the purpose of the law. Letting tow trucks run wild only increases the risk of harm to our communities and compounds the danger of our streets and freeways.

The comments on the Houston Press blog are certainly not wanting for personal examples of tow trucks making our streets more, not less, hazardous. Indeed, a quick google search can find many such instances.

However, despite the gut reaction, we do have ways to ameliorate this despicable practice that our city seems to tolerate. The way to defeat the hegemonic power of this tow truck regime is through the democratic avenues  of our duly elected officials.

City Hall needs to pass some laws.

There Ought to be a Law

First, Houston should impose strict liability upon tow truck companies. Regardless of whether it was their fault or not, tow truck companies should be held liable if they wrongly tow a vehicle. This legal standard would help ensure that the tow truck companies double check that they are correctly towing a vehicle. After all, the burden would be on them.

Secondly, Houston should not limit recovery for a wrongly towed vehicle to reimbursement of court costs and towing fees. The city should legislate that courts can provide recovery for Actual Damages.

To quote my Barbri practice book, Actual Damages means any damages recoverable at common law, including economic and non-economic, and tort damages. This standard includes mental anguish as well as pain and suffering.

Additionally, Houston should borrow from the Texas Deceptive Trade Practices Act, and compound damages based on whether the wrongful towing was committed knowingly or intentionally. If the tow truck company knowingly towed a vehicle when it shouldn’t have, the court should be allowed to reward up to double actual damages. If the tow truck company intentionally towed a vehicle when it shouldn’t have, the court should be allowed to reward up to triple actual damages.

Such a calculation of damages may reach an rather high cost, but the power imbalance in the towing regime justifies creating an economic and legal incentive to guarantee that all towing is proper. After all, anecdotes and experience show that citizens have quite the difficult time negotiating with tow truck drivers. Tow truck drivers need incentive to admit to fault when confronted, and these sorts of damages are just the incentive that our city can provide.

Furthermore, Houston is a driving city. A person’s car is often a lifeline to work, school, family, or anything that Houston has to offer. To take away someone’s car is to remove her from a functioning city. City Hall should do everything it can to guarantee that those who have their cars wrongfully towed are properly compensated, and also guarantee an economic and legal incentive against wrongful towing.

Thirdly, Houston should prevent tow trucks from towing non-ticketed cars from public streets and parking lots. Tow trucks are not elected officials. They are not the police. They are not public servants and they do not act to protect and serve. Tow trucks are businesses, run by private citizens. They should not be allowed to remove other citizens’ vehicles at whim. Only upon approval from properly trained police officers should tow trucks have the authority to remove cars. We would not allow tow trucks to go around granting tickets for speeding or running red lights. Heck, Houston doesn’t even like it when the police do that via cameras. Then why do we let tow trucks enforce parking laws? This is a responsibility for the police, not private companies.

Fourth, Houston should legislate that tow trucks are city actors. If tow trucks are going to enforce parking laws like police, then they should be held responsible like police. If tow trucks are going to seize private property, then they should be held to same standard as the other grand seizer of property: the government.

Therefore, as state actors, tow truck drivers could be held subject to §1983 charges. This means that tow trucks could be brought to Federal Court for violating a citizen’s rights under the constitution. This would help ensure that tow trucks don’t just act in accordance with proper towing law, but act up to the highest standards of liberty. This would prevent discrimination in the method of towing. It would also allow drivers to remove their complaints from local elected judges who may be under the sway of tow truck company donors, and seek the judgement of the Federal Judiciary.

Fifth, tow trucks should not be allowed to breach the peace while towing. This rule would hold tow trucks to the same standards as repo men. Similarly to repo men, tow trucks generally do not need a judicial process before seizing a vehicle, nor do they need to provide notice. However, repo men are not allowed to breach the peace in the process of repossessing property. This means that if either repressor or the reposessee breaches the peace during a repossession, then the repossession is not OK.

If Houston applies this standard to tow trucks, it means that people who find their vehicles in the middle of being towed can stop the towing by breaching the peace. Breaching the peace requires no grand effort, a mere making a scene or loud temper tantrum should be enough. Heck, even onlookers who disapprove of a towing could prevent it by honking at the tow truck and generally breaching the peace.

Imposing this standard would help guarantee that if someone was being towed, well gosh darn it, he deserved it.

Finally, tow trucks should have to make reasonable attempt to provide notice to the person whose car is being towed and give that person a reasonable opportunity to move the car. Houston could accomplish this by creating standardized “notice cards” that people could place in their cars or under their windshields that include number where they could be contacted in case of towing. A tow truck would have to make a reasonable effort to locate such a card, contact the owner, and then grant that person a reasonable amount of time to move the vehicle.

After all, the purpose of parking and traffic laws is not to enrich private companies, but provide for safety, aesthetics, and business interests. If someone can move his car, then the goals of the laws are fulfilled. There is no need to force citizens to pay often-dangerous, private towing companies to guarantee that we follow the laws.

In conclusion…

The state of towing in Houston is despicable. However, we have a way to resist this towing regime without resorting to violence. We have our duly elected representatives in City Hall. So write the mayor, write your city council person, write the Houston Chronicle. We can change the laws.

Or we can throw some eggs at tow trucks, whatever.

A paper I wrote for law school about KTRU and Internet Radio

For my Entertainment and Media Law class at Cardozo, I wrote a paper about the legal ramifications of Rice University selling the KTRU license and transmitter. I think it was an A- paper, which I suppose is pretty good. (The professors never responded with a direct grade for the paper, only for the overall class.) Anyways, here in the paper, in which I quote myself (pdf: Mintz KTRU legal) :

I. Introduction and History

A. Selling College Radio Stations

On December 5, 2010, the New York Times ran an article titled “Waning Support for College Radio Sets Off a Debate.”1 The article brought to national attention the problem of universities selling their college radio stations, notably addressing the recent controversies surrounding the sale of Rice University’s KTRU and Vanderbilt University’s WRVU. Since the article was published, Vanderbilt has not solidified any sale of its station. However, Rice University has continued with a sale marred by secrecy and controversy, and is currently waiting for the FCC to approve the license transfer that would allow the University of Houston to take over the frequency, turning KTRU into a classical music KUHC and the University of Houston’s current station KUHF into a 24-hour NPR station.2

Opponents of the sale have provided many reasons for their anger about and opposition to the sale. On the student and alumni side, Rice University has not provided any formal study justifying the sale and sold the station without discussion with the students and alumni who created and managed the station.3 The resulting sale will eliminate a source of media and broadcast education for students and will destroy a link with the surrounding city, local art establishment, and minority community, all contrary to the university’s previously stated goals.4

From the perspective of non-student or alumni opponents to the sale, removing KTRU from the airwaves would eliminate a unique, and award winning, source of music that cannot be found elsewhere in the local radio market.5 Furthermore, the secrecy of the deal was in potential violation of Texas’ Open Meetings Act.6

B. How Has the FCC Looked At Selling Radio Stations?

While monetary concerns, misleading university administrators, and musical aesthetics may make for good protest rhetoric, they do not make a cohesive legal argument against the sale of the KTRU frequency. In fact, in its Opposition to the Petition to Deny, Rice University specifically latched onto this framing of arguments against the transfer as programming-related arguments.7 From this perspective the Commission’s precedent is established: “the Commission does not scrutinize or regulate programming, nor does it take potential changes in programming formats into consideration in review assignment application.” 8

In the past the courts have scrutinized programming out of concern of preserving unique content on the airwaves. In Citizens Committee to Keep Progressive Rock v. F.C.C., the D.C. Circuit stated that it was “in the public interest, as that was conceived of by a Congress representative of all the people, for all major aspects of contemporary culture to be accommodated by the commonly-owned public resources whenever that is ethnically and economically feasible.” 9 While the court refused to distinguish between types of music — “one man’s Bread is the next man’s Bach” — it held that it was “in the public’s best interest to have all segments represented.”10 However, since 1977 the FCC has established that it would allow market forces to determine the broadcast station’s format.11 Furthermore, deregulation of the airwaves at the end of the Carter Administration and beginning of the Reagan Administration eliminated the 1971 Ascertainment Primer and the Renewal Primer that the court relied upon in Citizens Committee, creating less stringent requirements for license applications and renewals.12

While the FCC no longer concerns itself with the content of broadcasts, there is still the question of whether the specter of localism should influence the FCC’s approval of the KTRU sale. In this paper, I will address the concerns of localism as they apply in FCC regulations, and specifically look at Rice University’s recommendation in its Opposition to Petition to Deny that Internet radio over cellular phones serve as an adequate substitute for FM radio.13

II. Localism on the Radio

A. How Does Localism Apply?

1. Localism and KTRU

The Commission has in the past recognized localism as an important part of its charge. In its recent Report on Localism, the FCC has called the concept of localism “a cornerstone of broadcast regulation.” 14 As Friends of KTRU pointed out in its Petition to Deny, this localism mandate extends not just to the availability of a radio signal in a local community, but rather to the ability of that community to transmit issues of local importance over the airwaves and provide “their own media for local expression.”15 Indeed, the Commission has held that “broadcasters are obligated to operate their stations to serve the public interest — specifically, to air programming responsive to the needs and issues of the people in their communities of license.16 From the perspective of FCC rhetoric, KTRU supporters are in a proper position to argue that transferring the license would result in an important loss of local music and media. KTRU programs such as the Local Show, MK Ultra, Vinyl Frontier, Genetic Memory, and the Revelry Report showcase local artists and discuss issues specific to the Houston music community that cannot be found elsewhere on the local airwaves.17 Furthermore, KTRU also provides minority-oriented programing, such as Navrang, which focuses on music from the Indian subcontinent, and Africana, which focuses on music from the African diaspora. In a city where the Nigerian ex-patriot population totals more than 80,000 and more than 4 percent of the entire city population was born in Asia, these shows provide for the local community in ways that other FM stations do not.18 As the Commission instructs, “[t]he principle of localism requires broadcasters to take into account all significant groups within their communities when developing balanced, community-responsive programming, including those groups with specialized needs and interests.”19 These niche shows, with their local DJs, certainly are community-responsive. On the other hand, not one single program will be added to the station after the sale that will be specific to the local Houston community, only adding syndicated and national shows like BBC World News, the Diane Rehm Show, Fresh Air With Terry Gross, BBC World Have Your Say, Talk of the Nation, The World, Beutche Welle Newslink Plus, Tell Me More, and The Story.20 Given the comparison between the station offerings before and after the sale, it seems like the transfer could be denied on localism grounds. However, the Commission has not always applied its ideals of localism in a strict manner.

2. Localism as applied by the FCC and Media Bureau

While rhetoric and written policy by the Commission has emphasized the importance of localism in broadcasting, this importance has not always transferred into enforceable rules. For example, in the case of the assignment of a license of a noncommercial educational station WQEX(TV), a coalition of public-interest groups petitioned to deny the application on the ground that proposed assignee’s broadcasts “would consist almost entirely of sales presentations, with little or no noncommercial local content.” 21 However, the Commission refused to consider the argument, explaining that “the courts and Commission have repeatedly rejected arguments that would require intrusion into the format choices of broadcast licensees.”22 While WQEX concerned application of television license, the FCC Media Bureau has applied similar rationale to FM radio licenses. In the case of C-SPAN’s application for assignment of an FM radio license, some listeners objected to assigning the license because it would change “WDCU(FM)’s current jazz format to a format dedicated primarily to public affairs and news programming.” 23 Other objectors argued that the grant of application was not in the public interest “because C-SPAN’s proposed national programming does not the problems, needs and interests of the [local community].24 However, the Media Bureau letter rebutted these arguments, stating that the Commission “‘has had the appropriately limited role of facilitating the development of the public broadcasting system rather than determining the content of its programming,’” and that under well-established precedent, rather than having to actually demonstrate how it responds to the community needs, “an applicant is required to provide only a brief narrative description of its proposed community issue-responsive service.”25 In the end, the Commission approved the license. Indeed, in a this case concerning sacrificing a music station for news, with similar arguments about localism and public interest, the FCC has made its position clear, leaving KTRU supporters with little legal recourse. However, comparing application in cases with FCC rhetoric still provides a mixed message.

3. FCC Report and Rhetoric on Localism

The FCC’s 2008 Report On Broadcast Localism And Notice Of Proposed Rulemaking spends several dozen pages lamenting the problem of a lack of localism in the broadcast spectrum. Specifically, it identified the problem of broadcasters failing to serve the interests of local communities in developing and promoting local artists and in fostering musical genres.26 The report also addressed the issue of licensees grossly overstating the amount of locally oriented news programming that they offer by including commercials, weather, sports, entertainment, video news releases, and redundancy, with locally produced public affairs programming almost entirely absent.27 Furthermore, the report found that significant groups within communities were not being taken into account by broadcasters when attempting to apply the principle of localism.28

FCC Commissioners have personally expressed concern about trends against localism in the broadcast marketplace. In an address to the Columbia University Graduate School of Journalism, FCC Commissioner Michael Copps lamented the “homogenization and monotonous nationalized music at the expense of local and regional talent,” and proposed a system where a certain percent of programming is locally or independently produced.29 Former FCC Commissioner Rachelle Chong even used her Twitter feed to state support for KTRU and concern about the sale.30 So while past cases may not give much hope to KTRU supporters, FCC reports and statements from past and current commissioners may put enough pressure on the Media Bureau to take a hard look at localism concerns in the license transfer. However, in its Opposition to Petition to Deny, Rice University offered an alternative to assuage concerns about losing a unique and local source on the radio: Internet radio.

B. Is Internet Radio An Adequate Replacement for FM Radio?

In its Petition to Deny, KTRU stated that Web radio is not an adequate alternative to FM broadcast because it is not available in the car. Rice contends that this “ignores the increasing available of Web radio via cell phone.” 31 However, there are technological, monetary, and legal concerns as to whether Web radio over cell phones can replace FM radio for listeners.

1. Technological and Monetary Concerns

As of a Nov. 2010 report by Canalys, the most popular smartphone in the United States is the Apple iPhone, which has a 26.2 percent share of the U.S. market.32 The iPhone is currently available only on the AT&T network.33 AT&T’s high use, DataPro plan provides 2GB of data for $25 per month, and $10 for every additional 1GB.34 The average radio stream is 128 kilobits per second, equaling 16 kilobytes per second, equaling 57.6 megabytes per hour. By this math, it would take approximately 34.7 hours of listening to the radio per month to exceed the set data allotment by AT&T and incur additional charges. Merely a bit more than one hour of radio via an iPhone per day would use more data than what AT&T foresees in its highest use plan. In a city where the average commute is around 28 minutes, it is not difficult to imagine someone spending more than 34.7 hours listening to the radio in the car over the period of a month.35 Therefore, in addition to the one-time cost of purchasing an iPhone 4 for $199, or iPhone 3GS for $99, a regular KTRU listener would spend $25 per month to listen in the car, and an avid listener would spend $35 or more per month, meaning $300 or $420 per year. At the high end, this would require the average American to spend 15 percent more on entertainment than the current average annual expenditure of $2,698.36 This additional spending may be cost restrictive for many listeners. On the other hand, one can buy an FM radio for the one-time cost of $9.99.37 While Rice University may have an optimistic view about the ability of Web radio over cell phones to replace FM radio, crunching the numbers reveals that the hardware investment and price of use may make access overly cost restrictive for former KTRU fans. Unless the university is willing to help pay for listeners’ new cell phone bills, it may have an ill-informed perspective on current Internet costs and availability.

2. Legal Concerns

Even if there were not a monetary restriction on the ability of Web radio to replace FM radio, there is still a concern as to whether the FCC could justify eliminating a local source in the FM spectrum because it is otherwise available in the Internet. The Federal Communications Law Journal argues that inherent scarcity of the electromagnetic spectrum mandates that public interest obligations still remain enforced, stating that “despite the motley of other media outlets available-Internet radio, satellite radio, cable and digital television, and the like-the reason underlying such obligations in the first place is still present: electromagnetic spectrum is still scarce.”38 However, unlike various other media sources, radio’s pervasiveness in combination with its scarcity necessitates regulation. Furthermore, a strictly enforced market-based approach will only lead to, and arguably has led to, the creation of technology haves and have nots.39 Indeed, the cost restrictiveness of Web radio emphasizes the public interest charge of the FCC.

However, the FCC has addressed new technology supplanting old broadcasting in the realm of television. Currently, cable systems must carry the signals of local commercial and noncommercial broadcast stations in their local markets, while satellite carriage of local broadcasts is only required in Alaska and Hawaii.40 The FCC has expressed concern that in a small group of cases, the system used to define local broadcast stations results in the required carriage of the broadcast signal of an out-of-state station rather than an in-state station, potentially weakening localism.41 This concern demonstrates that the underpinnings of the must- carry requirements is the protection of localism. If Web radio, or satellite radio, were to serve as an adequate alternative to FM radio, the FCC should first create similar must-carry regulations for telecom providers and satellite radio companies to ensure that localism is not weakened. However, these regulations do not yet exist. Without guarantees of a must-carry provision, the same sort that were imposed on the cable industry as it replaced broadcast television, alternate radio sources cannot serve as a proper guarantors of localism.

III. Conclusion

The rise of Internet music and the perceived declining importance of radio, combined with an economic downturn, has led many universities to sell their college radio stations. The plight of Rice University’s KTRU has risen to prominence as fans and staff of the student-created and student-run, award-winning station have moved from usual campus protests to legal appeals in an attempt to stop the sale of the station. While FCC publications and commissioners’ rhetoric have emphasized the importance of localism, legal precedent does not give KTRU supporters much in the way of support. However, Rice University’s recommendation that the Internet serve as a proper alternative does not stand up to scrutiny. Monetary restrictions and lacking must- carry requirements prevent the Web from serving as a proper replacement for FM radio.

1 John Vorwald, Waning Support for College Radio Sets Off a Debate, THE NEW YORK TIMES, Dec. 5, 2010, available at http://www.nytimes.coml2010/12/06Ibusiness/medial06stations.html.

2 Chris Gray, KTRU Sale Now Totally In FCC’s Hands, HOUSTON PRESS, Dec. 20, 2010, available at http://blogs.houstonpress.com/rocks/2010/12/ktru_sale_now_totally_in_fccs.php.

Save KTRU made it to the New York Times, BURN DOWN BLOG, Dec. 5, 2010, available at https://burndownblog.wordpress.com/2010/12/05/save-ktru-made-it-to-the-new-york-times/

BURN DOWN RICE!: Selling KTRU violates V2C, BURN DOWN BLOG, Aug. 17, 2010, available at https://burndownblog.wordpress.com/2010/08/17/burn-down-rice-selling-ktru- violates-the-v2c/

Ibid.

6 Steve Miller, KTRU radio station not named in generic Regents meeting agenda; descriptions must be specific under Open Meetings Act, TEXAS WATCHDOG, Aug. 19, 2010, available at http:// http://www.texaswatchdog.org/2010/08/-generic-agenda-item-for-regents-meeting-did-not-name-ktru/ 1282261406.column

7 Rice Opposition at 2.

Application for Assignment of License of WQXR-FM, Letter, 24 FCC Rcd 11761, 11762 (2009).

Citizens Committee to Keep Progressive Rock v. F.C.C., 478 F.2d 926, 929 (D.C. Cir., 1973).

10 Ibid. at 929.

11 Changes in Entertainment Formats of Broadcast Stations, Memorandum Opinion and Order, Docket No. 20682, 60 FCC 2d 858, 863 (1976).

12 In the Matter of Deregulation of Radio, Report and Order, Docket No. 79-219, 84 F.C.C.2d 968, 971 (1981).

13 Rice Opposition at 7.

14 Report on Localism and Notice of Proposed Rulemaking, 23 FCC Rcd 1234 ¶ 5 (2008).

15 Petition, citing Utica Observer-Dispatch, Inc., 11 F.C.C. 383, 391-92 (1946).

16 Report on Localism and Notice of Proposed Rulemaking, 23 FCC Rcd 1234 ¶ 6

17 Petition at 10.

18 Ibid. at 11; Reply to Oppositions at 10.

19 Report on Localism and Notice of Proposed Rulemaking, 23 FCC Rcd 1234 ¶ 69.

20 Petition at 12-13.

21 Application of WQED Pittsburgh (Assignor) and Cornerstone Television, Inc. (Assignee) for Consent to the Assignment of LIcense of Noncommercial Educational Station WQEX(TV), Memorandum Opinion and Order, 15 FCC Rcd 202, 231 ¶57 (1999), vacated in part on other grounds by 15 FCC Rcd 2534 (2000).

22 Ibid. at 232 ¶ 57.

23 Application for Assignment of License of WDCU(FM), Letter, 12 FCC Rcd 15242, 15244 (1997).

24 Ibid. at 15244.

25 Ibid. at 15244-15245, citing Revision of Programming Policies and Reporting Requirements Related to Public Broadcasting Licensees, Notice of Proposed Rulemaking, 87 FCC 2d 716, 732 (1981); Report and Order, 98 FCC 2d 746 (1984); Request for Declaratory Ruling Concerning Programming Information in Broadcast Applications for Construction Permits, Transfers and Assignments, 3 FCC Rcd 5467, 5467-5468 (1988).

26 Report on Localism and Notice of Proposed Rulemaking, 23 FCC Rcd 1234 ¶ 35.

27 Ibid. at ¶ 37.

28 Ibid. at ¶ 69.

29 FCC’s Copps Proposes Public Value Test for License Renewal, RADIO, Dec. 3, 2010, available at http://www.radiomagonline.com/fcc/fcc-copps-public-value-test-license-renewal-1203/ index.html.

30 Growing opposition to the KTRU sale OR Know Your FCC Commissioners,BURN DOWN BLOG, Nov. 15, 2010, available at https://burndownblog.wordpress.com/2010/11/15/growing- opposition-to-the-ktru-sale/.

31 Rice opposition at 7.

32 Tim Stevens, Canalys: iPhone becomes most popular smartphone in the US, Android continues as most popular OS, ENGADGET, Nov. 1, 2010, available at http://www.engadget.com/ 2010/11/01/canalys-iphone-becomes-most-popular-smartphone-in-the-us-andro/.

33 http://www.att.com/wireless/iphone/ (iPhone is configured to work only with the wireless services provided by AT&T.)

34 http://www.att.com/shop/wireless/plans/data-plans.jsp.

35 Stephen Ohlemacher, Believe it or not, average communting time drops, HOUSTON CHRONICLE, Aug. 30, 2006, available at http://www.chron.com/disp/story.mpl/nation/ 4152068.html.

36 How The Average U.S. Consumer Spends Their Paycheck, VISUAL ECONOMICS, available at http://www.visualeconomics.com/how-the-average-us-consumer-spends-their-paycheck.

37 http://www.amazon.com/Sony-ICF-S10MK2-Pocket-Radio-Silver/dp/B00020S7XK

38 Deliberative Democracy on the Air: Reinvigorate Localism – Resuscitate Radio’s Subversive Past, 63 Fed. Comm. L.J. 141, 188.

39 Ibid. at 190. 40 Report on Localism and Notice of Proposed Rulemaking, 23 FCC Rcd 1234 ¶ 47, 48. 41 Ibid. at ¶ 49.

 

Another Evan column, and a reaction from the Dean

First, thanks to Roxanna Maisel, whose line “I know lots of things, but most of them are wrong,” I stole for this column.

The Cardozo Jurist came out yesterday, and I have another column in it. Because the paper only comes out monthly, each column needs to be a real barn burner. No time to waste precious column space on pot or masturbating. I have a list of the big wheels at the law school, and each column will address one. Last month was the Dean, this month is law journals. And you can read all about it at the Jurist website! Or here. Or whatever. (pdf: Mintz oct column)

In addition to my column, the Dean wrote a response to my column from the previous issue, in which I accused him of general cowardice when it came to gay rights. Of course my column was mean, blunt and over the top. It was written by me, Evan! However, it does raise the question of whether gay rights should be viewed as a political matter or as one of civil and human rights. I think that it unequivocally should be the latter, and there is no room for compromise. A general written statement does not have the authority of a public statement, which I guess the Dean made in this letter. So I’m glad I could force him into that position, or some such.

Also, notice the redesign of the newspaper! It looks pretty darn cool. They finally bought inDesign.

My new favorite court case, and it involves Jurassic Park

For those who can’t tell, I love Jurassic Park. Of course, who doesn’t? Its fun, interesting, has dinosaurs and Unix. Now you’re probably saying, “I know this!” But you probably didn’t know that the U.S. Second Circuit Court of Appeals knows this, too, and has officially recognized, in law, forever, the awesomeness of Jurassic Park. Thus, behold the case of Williams v. Crichton. (PDF: Williams v. Crichton)

For those who don’t want to read the whole thing, I’ll cut to the meaty center: About 20% of this case is just summarizing the plot to Jurassic Park. I can’t imagine which clerk got the cushy job of reading and summarizing Jurassic Park for the court. Really, what were his conversations like?

Clerk 1: I have to research the legislative history of tariffs on beets to determine what sort of regulatory structure Congress intended for various rooted vegetables. What about you?

Clerk 2: I have to read Jurassic Park and then watch the movie Jurassic Park, and then summarize the plot.

[Judge walks in]

Judge: Hey Clerk 2, how’s the progress on the research for the Williams v. Crichton case?

Clerk 2: Its going well, but I think I need to watch the film again to really get a sense of its copyrightable attributes as distinct from mere scenes a faire.

Judge: Very well, keep working.

Clerk 1: I really hope we have a copyright infringement case about Congo, because I’m sure there was a previous story about supermonkeys using diamond-powered lasers.

Anyways, the point of the summary was to compare Jurassic Park to some guy claiming Michael Crichton ripped him off, violating the copyright of his “Dinosaur World” books, which were short children’s books with titles like “Saber Tooth: A Dinosaur World Adventure.”  Basically, the books are like what Jurassic Park would have been like if it had actually opened.  Booooring. Plus, this joke had already been made in the future by the Simpsons:

For those who do not want to watch a video, or if the Hulu video isn’t working, which is wasn’t when I wrote this, you can read the words said by the characters in that wonderful 5th season episode, “Sweet Seymour Skinner’s Baadasssss Song”:

At the Kwik-E-Mart, Apu chides Bart for abusing the self-serve ice cream dispenser and making a foot-high cone.  Milhouse spies a familiar face in one of the aisles.

Milhouse: Bart, look!  It’s Principal Skinner.  And I think he’s gone crazy — he’s not wearing a suit or tie or anything!

Bart: [approaches him] Principal Skinner?  Um, I’m real sorry about my dog getting you fired, and biting you, and then getting it on with your leg.

Skinner: Well…maybe it was for the best.  Now I…I finally have time to do what I’ve always wanted: write the great American novel. Mine is about a futuristic amusement park where dinosaurs are brought to life through advanced cloning techniques.  I call it “Billy and the Cloneasaurus.”

Apu: Oh, you have _got_ to be kidding sir.  First you think of an idea that has already been done.  Then you give it a title that nobody could possibly like.  Didn’t you think this through…[later]…was on the bestseller list for eighteen months! Every magazine cover had…[later]…most popular movies of all time, sir!  What were you thinking?!  [realizing] I mean, thank you, come again.

However, the best part of this case isn’t just the retelling of the epic Jurassic Park story, even the part where “Velociraptors hunting in packs attack many people, killing some and narrowly missing others.  The children are attacked by a pack while hiding in the headquarter’s cafeteria, but they manage to trick the velociraptors into entering a giant freezer.” 84 F.3d 581, 586. The best part is not even footnote 2:
“Malcolm, near death, argues with Hammond that the park was doomed to failure from the beginning.  Hammond stalks off, and is soon killed and eaten by procompsognathids.  Malcolm also dies, succumbing to his injuries.2
2.   What seems to use a clear case of death is made more ambiguous by the sequel to Jurassic Park, a novel entitled The Lost World, where Malcolm is again a central character.

Not only must some clerk have read Jurassic Park, but The Lost World as well. Best clerk job ever (except maybe when the pre-Miller Supreme Court got to watch pornos all day long to decide if they were obscene or not). However, this leads to the Best part of this case. Now, due to this footnote, the plothole between Jurassic Park and The Lost World is now part of the official legal record. It can be cited in future cases and be held as binding. Sure, one could argue that this line, and indeed most of the summary of Jurassic Park, was just dicta. I say shut up.

Sure, maybe none of the other cases that cite this case deal directly with dinosaurs, but that doesn’t mean they can’t make references to dinosaurs when discussing applicability of this case:

“characters escape deadly, pack-hunting dinosaurs … when another dinosaur intervenes.” Robinson v. New Line Cinema, 42 F.Supp.2d 578, 593.

“electrical fences, automated tours, dinosaur nurseries, and uniformed workers were all ‘classic scenes a faire that flow from the uncopyrightable concept of a dinosaur zoo.'” Randolph v. Dimension Films, 634 F.Supp.2d 779, 790.

“Both stories centered a small group of individuals, including a knowledgeable adult guide and young dinosaur enthusiasts. Both depicted harrowing encounters with carnivorous dinosaurs from which the human characters escaped, via helicopter, ‘through the combined wit of the children and adults.'” Hudson v. Universal Studios, 2008 WL 4701488

Thanks to this case, contemporary and future jurists dealing with copyright cases can talk about dinosaurs. All judges who have a chance to use this case should use this case, simply as an excuse to deluge our judicial system with references to dinosaurs. (Also, any case citing this one should refer to its dissenting opinion as “inflicting dino-damage”)

Justice Scalia is a Battle-Ravaged Allosaurus

In conclusion, Jurassic Park is now legal canon, and it should remain that way, forever. Or, as Ryan Q. North put it referencing another wonderful pastime:

Question: Does the USS Enterprise not exist on the new Star Trek timeline?

Burn Down Cardozo and their rejecting a reality show

For those who don’t follow Abovethelaw.com (which is a generally good idea), MTV TV representatives floated the idea of having a reality show at Cardozo.

I have never supported anything more than this in my entire life.

But it didn’t happen. However, before that news got out, I wrote a little column about it. Here it is

Put me, Evan, in the Cardozo reality show

Over the past week, rumors have swirled at 55 5th avenue that Cardozo has been considering an offer to have a reality TV show filmed at our law school.

I am ashamed and shocked. How can Cardozo even consider a reality show without immediately contacting me to be a character?

Supposedly the plan is for the show to cover law students as they work through the year and offer legal advice to real clients, in real cases. Boring.

America doesn’t want to see well thought out, logical legal advice. It wants to see 1L’s crying in the fetal position. It wants to see best friends undermining each other for Big Law internships. It wants to see drama, entertainment, and breasts. And I’ve got two out of three.

In contrast to the inevitable characters of hot genius undergrad chick struck down by the first year of law school, or the newlywed trying to balance home and school, I’ll be the fun-loving cut-up with all the best B-stories who gets a spinoff in the end. Think Joey in Friends or G. Gordon Liddy in The Nixon Administration. And believe me, I’ve got the goods.

There are no limits to all the wacky adventures this Texas Jewboy transplant will get in. Think cutting intermittently from a serious plot to a B-story of me slipping and falling over the period of several hours as I try, desperately, to make my way to Cardozo during the first freeze. Apparently cowboy boots don’t make good snow boots.
Weeow! (That’ll be my catch-phrase, by the way).

Or a hilarious game of chicken between me and a professor as I try to bluff my way through a cold call that I’m obviously unprepared for.
“So let me get this straight, Mr. Mintz. You’re saying that Miller v. California held that a beer could have both great taste and be less filling.”

Or an episode where I have a breakdown and yell at all the people who take the elevator to just go to the second floor, but then — ironic twist! — I hurt my knee and have to take the elevator all the time.
“Oh, so its the guy who thinks he’s too good to take the elevator one floor!”

I can already taste the Cable Ace Award.
But those are just a few ideas. I’ll do whatever, and whomever, it takes to get on the show. Sleep through my final for the season finale? I’m there. Bone a professor for sweeps week? Oh you know I’m there. Hold a pork roast in the 3rd floor lounge during the Fast of Esther? I’ll have people saying Evan instead of Haman if its what we need for ratings.

Lets be honest. With my GPA and extracurriculars, I’ve got no hope for a high paying job, or even a low paying respectable job. So if I want my millions, I’ve got to make it American way: sell my soul to Hollywood. I foresee a career MTV movie award gigs, VH1 commentary, and a Playboy shoot that, no matter what, will still be better than Heidi Montag’s.

So choose me, Cardozo. You already picked me for admission and you didn’t regret that. Right?