Friday, September 30, 2011

Hospital in Libel Suit Against Duluth News Tribune : Newspaper, Heal Thyself

Duluth Canal Park LakewalkImage via WikipediaEarlier this month, according to a report by Hubbard Broadcasting's WDIO-TV Channel 10 ABC affiliate in Duluth, Minnesota, St. Luke's Hospital has filed a defamation suit against the Forum Communications Co.-owned Duluth News Tribune("DNT") over a series of articles concerning a neurosurgeon who worked at the hospital from 1997-2008.

The hospital's complaint alleges that a July 31, 2011, article headlined: "As Duluth Hospital reaped millions, surgeon racked up complaints," written by two DNT reporters, includes 15 defamatory statements attributed to a dozen sources that "intentionally and deliberately mislead(s) sources, quoted sources out of context, and purposefully avoided information that would contradict their preconceived story." The article was one of a series of articles the daily published in May and August regarding the former St. Luke's neurosurgeon Stefan Konasiewicz.

The plaintiff contends that sources in the DNT story knew or should have known that they were obligated to make written complaints if they were concerned about the neurosurgeon's performance and that state law would preclude the sources from airing those complaints in the newspaper. For its part, DNT Publisher Ken Browell is quoted in the WDIO-TV online story as standing by the paper's reporting on what he deemed a matter of public safety and concern.

St. Luke's Hospital is demanding a retraction and seeking damages of at least $50,000.
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Thursday, September 29, 2011

Missouri Solons: Teachers and Students Can Poke Each Other on Facebook Again

JOPLIN, MO - MAY 29:   U.S. President Barack O...Image by Getty Images via @daylifeMissouri lawmakers gave themselves a mulligan last week by voting to repeal a portion of a controversial measure that proscribed private Facebook chats between teachers and students.

It's unclear whether Democratic Gov. Jay Nixon will sign the repeal that the Missouri House backed by a 139-2 margin and that the Senate unanimously passed 33-0, according to an Associated Press report. If enacted, the onus would be on school districts to develop their own employee/student electronic media policies.

Last month, a judge enjoined the law that would have prohibited teachers from communicating with students via Internet sites such as Facebook from taking effect, ruling that the breadth of the legislation would have a chilling effect on individuals' First Amendment rights. The Missouri State Teachers Association, which endorsed the repeal, condemned the original law that it believed was over-broad and threatened online courses.

The original version of the law was a component of legislation designed to curtail the practice of teachers who sexually abuse students from resigning out of the spotlight and being rehired by other unsuspecting school districts.

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Online Bad Reviews Tough for Restaurateur to Swallow; Sues for Libel

Image representing Yelp as depicted in CrunchBaseImage via CrunchBaseIn YS Catering, LLP v. Yelp!, Inc. (Case No. 1:2011cv23483), removed this week from state court to the U.S. District Court for the Southern District of Florida,  a company that operates The Fresh Diet food service has sued the Yelp! review site for libel, claiming the defendant committed "defamation by implication" by top-loading site users' negative reviews of the company while allegedly hiding access to more positive feedback.

As reported by the MediaPost News blog, the complaint alleges Yelp! prominently displays 13 negative posts about The Fresh Diet, but that an additional 16 reviews, many of which are positive, require visitors to click to a second page. Interestingly, the plaintiff isn't alleging that it was defamed by the content of the bad reviews, which wouldn't withstand a fair comment defense to libel (opinions by their nature are neither true nor false, and thus, are non-defamatory), but rather, by the defendant's business judgment in how it decided to display the reviews critical of the plaintiff.

It's artful, but not likely to succeed, because Section 230(c)(1) of the Communications Decency Act of 1996 shields Internet Service Providers such as Yelp! from such liability by stating: "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

Food for thought.

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Thursday, September 22, 2011

Khanfar Quits Al Jazeera: Is Wikileaks Posted U.S. Embassy Cable to Blame?

Al_Jazeera_English_Doha_NewsroomImage via WikipediaAfter an eight-year stint as Managing Director and Director-General of Al Jazeera, the Qatar-owned broadcasting network,Wadah Khanfar has resigned amid whispers his departure was precipitated by a WikiLeaks-posted October 20, 2005, cable from the U.S. Embassy in Doha, Qatar, indicating Khanfar's willingness to delete content from Al Jazeera's Website at the urging of a U.S. Intelligence official, according to Yahoo News' blog, The Cutline, and

Neither Al Jazeera nor Khanfar in his resignation memo to staffers allude to the latest WikiLeaks-stirred controversy, with Khanfar merely suggesting it was time to move on after eight years at the helm. He will be replaced by Sheik Ahmad bin Jasem bin Muhammed Al-Thani from Qatar's royal family. It's nice to see a news executive work his way up the ladder after beginning at the top rung.

The WikiLeaks cable at issue, which was published in late August, purportedly reveals Khanfar agreeing to delete graphic photos and a doctor's testimony from Al Jazeera's Website that the U.S. found disturbing. Khanfar allegedly agreed he would remove the content after waiting a couple of days so that the deletions would not be "talked about."

CNET reports that Khanfar Tweeted about his resignation, saying he was "entertained" about the rumors underlying his departure.

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Wednesday, September 21, 2011

Netflix Tries to Pull a Qwikster on Its Subscribers

Image representing Reed Hastings as depicted i...Image via CrunchBaseUndoing a public relations fiasco can be harder than coaxing toothpaste back into a tube, but Netflix chief executive Reed Hastings gave it the old college try this week, The New York Times reported.

In announcing that Netflix will continue to stream movies but that its DVD-in-the-mail subscription service will now operate separately under the name Qwikster, Hastings also apologized to the company's users for mishandling the announced price increase for subscribers. The company's rate jumped 60 percent from $10 a month for online movie streaming and DVD mail delivery to a combined $16 a month or $8 for each of the Qwikster and Netflix services.

According to the Times article, the price boost prompted roughly 1 million of the company's estimated 25 million customers to abandon ship.

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Tuesday, September 20, 2011

CNN: If You Can't Beat Fox, Join 'Em: Ex-Bush Flack Hired as Contributor

Ari Fleischer, former White House press secretaryImage via WikipediaCNN ("Co-opted News Network) might as well install revolving doors outside its studios, with the announcement today that Ari Fleischer, White House press spokesperson for President George W. Bush from 2001-2003, has signed on as a contributor.

Currently the head of Ari Fleischer Sports Communications, Inc., CNN's latest political talking head previously was a spokesperson for Sen. Pete Domenici (R.-N.M.), communications director during Elizabeth Dole's bid for the presidency and author of Taking Heat, a non-fiction account (a new experience for him) of his White House years.

CNN's hiring of the Republican stalwart comes on the heels of the third-place cable network ratings dweller's ill-advised co-sponsorship with the Tea Party of  the recent GOP presidential candidates' "let-the-uninsured-die" debate. Tired of hawking itself as the objective alternative to the left-leaning MSNBC and right-leaning Fox News, CNN apparently has decided the "C" in its name should stand for "Conservative." When Piers Morgan is your Prime Time draw, desperate times call for desperate measures.
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Monday, September 19, 2011

UPDATE: 1st Circ. Tells Tenenbaum He Should've Quit While He Was Behind

Recording Industry Association of AmericaImage via WikipediaIn Sony BMG  Music Entertainment et al. v. Joel Tenenbaum (Case Nos. 10-1883, 10-1947, 10-2052), the United States Circuit Court of Appeals for the First Circuit last week reinstated the $675,000 judgment awarded the Recording Industry Association of America ("RIAA") in 2009 against Boston University student Joel Tenenbaum in a copyright infringement suit arising from his downloading of 30 copyrighted songs in 2004 from the defunct peer-to-peer network KaZaA (see "TUOL" posts 7/9/10, 8/3/09, 7/28/09).

The appellate court faulted now-retired U.S. District Court for the District of Massachusetts Judge Nancy Gertner for ruling the judgment was "unconstitutionally excessive" and reducing it to $67,500. A jury had found Tenenbaum's infringement by downrighting copyrighted tunes from Beck, Nirvana and other artists to be willful and assessed damages of $22,500 for each of the 30 songs, within the damages range permissible under the copyright statute (17 U.S.C. sec. 101), which Judge Gertner slashed by a factor of ten to $2,250 per song.

The appellate court said Judge Gertner erred procedurally by tackling the constitutionality question before addressing Tenenbaum's remittitur motion (a request for a judge to reduce a jury award). The First Circuit in its 65-page decision did suggest "Congress may wish to examine" some of the Copyright Act issues raised by the case.

Defense attorneys contended that the Digital Theft Deterrence Act and federal copyright provisions were not supposed to target consumers. Tenenbaum appealed Gertner's finding, saying at the time that he couldn't afford to pay $67,500, so the four victorious record labels shouldn't step up their spending in anticipation of getting a $675,000 money order from Tenenbaum anytime soon.

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Friday, September 16, 2011

UPDATE: 'Bruno' as Hard as 'Borat' to Defeat in Court

Cover of "Brüno [Blu-ray]"Cover of Brüno [Blu-ray]English actor/comic Sacha Baron Cohen was engaged in protected First Amendment speech when an improvised scene involving his film character "Bruno" disrupted a charity Bingo game and sparked a lawsuit by a woman who blamed the actor for injuries she sustained, according to reports by Associated Press and The Hollywood Reporter's law blog, THR, Esq.

California's 2nd District Court of Appeal in Los Angeles said an 11-count complaint brought by Richelle Olson and her spouse Lance Olson against Cohen, NBC Universal, Cold Stream Productions, LLC and others two years ago should be dismissed (see "TUOL" post 6/8/09). Mrs. Olson, the former executive director of Desert Valley Charities that staged the Bingo game, sued for assault and negligence, among other claims, alleging Cohen was responsible for injuries she suffered when she fell and struck her head shortly after grappling with the actor as she tried to regain the microphone he was using to call a ribald version of Bingo.

Olson originally had consented to allow Cohen to film the Bingo game in May 2007, as part of  the movie Bruno that focused on a gay Austrian fashion designer, but objected when the actor graphically linked the numbers he was calling to homosexual relationships in which his character had been involved. The unscripted scene was not included in the final version of the comedy film.

The defendants filed an anti-SLAPP (Strategic Law Against Public Participation) against the plaintiffs, asserting that Cohen's zany conduct advanced free speech.  The appellate court agreed, saying Cohen was offering commentary on homophobia and gay stereotypes during the scene at issue, which is protected  speech under the First Amendment.

The plaintiffs are likely to be socked with the defendants' legal costs.

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UPDATE: FCC Sees Through the Clouds; Okays Cumulus' Citadel Purchase

Seal of the United States Federal Communicatio...Image via WikipediaTwo radio giants have cleared the last hurdle to their merger as the Federal Communications Commission gave its blessing to Cumulus Media, Inc.'s acquisition of Citadel Broadcasting Corp., the Associated Press reports.

Cumulus, the nation's second largest radio broadcaster, acquired Citadel, the third-largest, in a combined cash and stock deal that involved a $37 a share offer for Citadel (see "TUOL" post 3/11/11). Clear Channel Communications, Inc. still heads the pack as the largest radio broadcaster in the U.S. with more than 800 radio stations.

Citadel emerged from Chapter 11 bankruptcy reorganization in December 2009. Cumulus boasts 570 radio stations in 120 markets nationwide. Cumulus (CMLS) is trading today on the NASDAQ at $2.45 a share.
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Thursday, September 15, 2011

UPDATE: Scholz Setback in Libel Suit Against Boston Herald

Tom ScholzCover of Tom ScholzCiting the long-recognized fair reporting privilege, Massachusetts Superior Court Judge John C. Cratsley has dismissed some of the defamation claims against The Boston Herald brought by Boston band co-founder Tom Scholz, the Herald reported today.

Scholz, the band's composer and keyboardist/guitarist, sued the daily last year in Donald Thomas Scholz v. Boston Herald, Inc., Gayle Fee & Laura Raposa (Case No. 10-1010), alleging emotional distress and defamation based on articles published in the tabloid in 2007 on March 15 & 16 and July 2 (see "TUOL" post 3/18/10), and later, in May 2010, when the Herald reported on the lawsuit itself and the parties' positions. Scholz alleges the defendants blamed him for the suicide of Boston vocalist and co-founder Brad Delp.

Judge Cratsley tossed the defamation claims arising from the May 2010, Herald articles, ruling the accounts had accurately reported about the lawsuit and were not unfair or published for any purpose other than to inform readers. The so-called fair reporting privilege is a well-established qualified defense to libel suits in which accurate, fair reporting of judicial proceedings (which are absolutely privileged) is not actionable. It's a qualified defense in that a biased, inaccurate and unfair account of a privileged court hearing would not afford the offending journalist protection.

The plaintiff's suit is still active regarding the allegedly defamatory 2007 items that appeared in the Herald's Inside Track column.  Scholz recently came up empty in a separate 2008 defamation suit against Delp's widow, Micki Delp, and her sister, Connie Goudreau. 

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Facebook Borrows a Button from Twitter

Image representing Facebook as depicted in Cru...Image via CrunchBaseRadio comic Fred Allen once mused that "imitation is the sincerest form of television." Apparently, that applies to virtual world too.

Facebook, the social networking platform behemoth, has added a Subscribe button for its users to play with, in a nod to microblogger Twitter. Joining the Poke and Message buttons on Facebook's Profiles page, the Subscribe button, when clicked, affords access to the inner-most thoughts of participants, including celebrities and pols, irrespective of whether they are among the users' "friends," according to a release by Facebook reported in the San Jose Mercury News, the Website and elsewhere. Additionally, the Subscribe feature enables users to control what content of their friends' profiles they wish to see, for example, granting access to photos but curtailing the endless, dreaded life event updates.

The latest Facebook addition follows its recent expansion of Friends Lists, including Smart Lists, which allows for more efficient grouping of Facebook pals. "TUOL" wonders if a little birdie told Facebook about Google +, the social networking service rolled out this past summer with its Circles, Hangouts, Sparks, Huddles and other cutesie annoyances. Before long, the Facebook site will have more buttons than an Edwardian-style suit jacket.
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South Dakota Recognizes Right of Access to Civil Trials

Bear Country USAImage by Mr. George1 via FlickrIn Rapid City Journal, Associated Press & South Dakota Newspaper Association v. The Hon. John J. Delaney, South Dakota Seventh Circuit Court Judge (Case. No. 2011 S.D. 55), the South Dakota Supreme Court last week ruled that the public and the press have a qualified First Amendment right of access to civil trials.

As noted by the Reporters Committee for Freedom of the Press Website (, the High Court's unanimous 21-page opinion puts South Dakota in the majority of states and federal courts that recognize a First Amendment right of access to civil proceedings. The U.S. Supreme Court has yet to rule on the issue, but in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), found the public had a First Amendment right of access to criminal trials, absent a "compelling governmental interest" that is "narrowly tailored" to bar attendance.

Defendant Rapid City Circuit Court Judge John Delaney's orders were overbroad and  improperly closed the courtroom doors, sealed records and issued gag orders, the High Court ruled,  in a case that involved an interfamilial fight concerning the fair value of Bear Country USA, a popular tourist attraction. The parties persuaded Judge Delaney to exclude the public and press to protect their privacy interests, purported confidential information, trade secrets and financial documents. The plaintiffs sued, claiming the courtroom closure violated the First Amendment.

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Tuesday, September 13, 2011

Authors Groups Tackle Research Libraries in Copyright Infringement Suit

Seal of the United States District Court for t...Image via WikipediaIf the 23-page complaint, The Authors Guild, Inc. et al. v. HathiTrust, The Regents of the University of Michigan et al, filed this week in the United States District Court for the Southern District of New York, proves anything, it's that one person's digital archives repository is another's den of copyright infringement.

As reported in The New York Times, the Authors Guild, a not-for-profit New York-based industry group that boasts more than 8,500 members, joined by plaintiffs the Quebec Union of  Writers, The Australian Society of Authors and eight individual authors, allege the defendant research libraries and universities are infringing on their  copyrights and exclusive rights under the Digital Millenium Copyright Act ("DMCA") [Pub. L. 105-304], which amended the Copyright Act of 1976 [Title 17 of the U.S. Code] "by digitizing, archiving, copying and now publishing the copyrighted works without the authorization of those works’ rights holders."

Ann Arbor, Michigan-based defendant HathiTrust, founded in 2008, is a partnership of more than 50 universities, educational institutions and consortia whose research libraries have collaborated thus far to create a digital archive of more than 9.5 million books and journals. Rather than pursue damages against the defendants, the plaintiffs are asking the court to issue an injunction to order the removal of the works from the HathiTrust servers, which would be held by a trustee.

The plaintiffs' complaint allege the defendants are violating 17 U.S.C. sec. 108, which permits libraries to make digital copies of unpublished works for preservation purposes and as replacements for published works, but places  restrictions on permissible uses of digital copies: "(a)There can be no further distribution of  the digital format; and (b)the digital copy cannot be used 'outside the premises of  the library or archives.'"

The suit also challenges HathiTrust's methodology for designating books as "orphan works," whose rights-holders are unknown or cannot be found, the Times reports. The Authors Guild is battle-seasoned, having sued Internet search engine behemoth Google in 2005 for scanning and archiving digital books.

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Monday, September 12, 2011

UPDATE: 'Skins Owner Punts Libel Suit Against Washington City Paper

ASHBURN, VA - JANUARY 06:  Washington Redskins...Image by Getty Images via @daylifeMaybe he's just feeling giddy over defeating the favored New York Giants 28-14 on Sunday, but Washington Redskins owner Daniel Snyder has ended his seven-month war against the Washington City Paper, parent Creative Loafing (both owned by the Atalaya Capital Management LP hedge fund) and writer Dave McKenna, dropping his $2 million libel suit over The Cranky Redskins' Fan Guide to Dan Snyder article that appeared in the weekly in November 2010 (see "TUOL" posts 6/20/11, 4/27/11, 2/3/11).

Snyder agreed to dismiss the suit and each side agreed to bear its own legal costs and release one another from all future claims, the  Washington Post reports. Snyder sought general and punitive damages against the defendants over the article that chronicled alleged transgressions and public relations embarrassments by the controversial team owner.  City Paper supporters ponied up $34,000 to help the paper defray legal costs, which the defendant said was far exceeded in defense of the suit.
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Friday, September 9, 2011

N.J. Court Finds Donald Trump Lacks Appeal

This photo depicts Donald Trump's star on the ...Image via WikipediaIn a 30-page opinion issued this week, the Appellate Division of the Superior Court of New Jersey upheld a trial judge's dismissal of  real estate magnate/"The Apprentice" reality TV star Donald Trump's 2009 $5 billion defamation suit against the author and publisher of TrumpNation: The Art of Being the Donald for writing that Trump was not a billionaire.

The 63-year-old Trump, through his attorney, assesses his personal worth as exceeding $7 billion, but then again, Trump also claimed that investigators he hired had scoured Hawaii and were going to blow the lid off President Barack Obama's birth certificate. TrumpNation author Timothy O'Brien estimated Trump's net worth as somewhere between $150 million and $250 million. A New Jersey Superior Court judge last May granted summary judgment for the defendants, holding that Trump, a public figure, could not show "actual malice," that is, that the defendants published false statements about him with knowledge of their falsity or with reckless disregard of the truth or falsity of the statements. Trump's attorneys argued that the defendants' reliance on anonymous sources constituted actual malice.

In Donald J. Trump v. Timothy O'Brien, Warner Book Group, Inc. and Warner Books Inc. (Docket No. A-614108T3), the appellate panel affirmed the lower court's ruling, stating: "There were no significant internal inconsistencies in the information provided by the confidential sources, nor was there 'reliable' information that contradicted their reports, so as to provide evidence of actual malice. Nothing suggests that O'Brien was subjectively aware of the falsity of the source's figures or that he had actual doubts as to the information's accuracy."

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Thursday, September 8, 2011

Dad Sues Facebook in Belfast High Court Over Pre-teen Daughter's Provocative Pics

Belfast skylineImage via WikipediaThe Silicon Republic blog posted about a story reported on by the BBC and The Daily Mail concerning a negligence lawsuit filed in the Belfast High Court by a father in Northern Ireland whose 12-year-old daughter allegedly posted sexually suggestive photos of herself on the social media platform.

Dad's complaint alleges his daughter provided information about where she lives and the school she attends, along with pictures of herself in which her father claims she is heavily made-up and provocatively posed. The Mail story says the daughter has received requests from adult men for more photos and messages. After all, what are "friends" for?

The lawsuit alleges Facebook failed to enforce its terms of use policy that requires participants to be at least 13 years old and has created a situation that poses a risk of  "sexual and physical harm" to his minor daughter. Facebook contends that it takes user safety seriously through its own safety center and by forging relationships with law enforcement agencies and organizations such as ChildNet.

"TUOL" believes the father needs to have the kind of  sit-down with his daughter that used to occur on The Cosby Show weekly. Readers should click the "Like" button if they agree.

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Memphis Daily Shrill Over Shill

A Kroger location in Gulfton, Houston, TexasImage via reports the E.W. Scripps Co.-owned Memphis Commercial Appeal is sulking because it believes it was misled by Lori Willis, communications director for the Schnucks grocery store chain out of suburban St. Louis.

The Appeal claims that Willis denied rumors that the supermarket chain was going to unload its Memphis stores to Cincinnati-based The Kroger Co., the nation's largest supermarket chain. When the transaction was announced last week by Schnucks, which means the loss of jobs for hundreds of Memphis residents, the Appeal felt like, well, Schnooks.

Roland Klose, Appeal business editor, deflected criticism that his paper was caught napping by not reporting on Schnucks exiting Memphis, arguing it would have been irresponsible to print rumors that Willis already had vehemently denied.  For her part, she claimed the two supermarket giants had an agreement that prevented her from commenting on the sale and that she told the Appeal "the best information I had at the time."

The Memphis Commercial Appeal may be in a snit over being "spun" by a foodstore flack, but "TUOL" can't help but recall advice received from his favorite journalism prof.: "If your mother says she loves you, check it out." Having its reporters line up at the "10 follow-up interviews or less" register might have tipped the paper to Schnucks' departure.

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Wednesday, September 7, 2011

Cook County Court Rejects Shield Law Claim of Medill Journalism Students

Wordmark of Northwestern University.Image via WikipediaNorthwestern University journalism students who toiled for five years under former Prof. David Protess in the Medill Innocence Project were criminal proceeding investigators, not journalists, and cannot withhold information from prosecutors under Illinois' shield law[75 Ill. Comp. Stat. 5/8-901 to 8-909], a Cook County judge has ruled.

The Website said prosecutors are in line to receive more than 500 Emails the Medill students fought against disclosing, absent further appeal by Northwestern. The Emails concern the project's efforts to obtain the release of Anthony McKinney, who is serving a life-sentence for a murder conviction. The court found the students conducted interviews and amassed evidence at the direction of McKinney's counsel.

Counsel for the university argued that advocacy journalists, along with mainstream news media members, should benefit from the shield law.

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Friday, September 2, 2011

UPDATE: Federal Judge Okays Comcast NBC Purchase, Retains Oversight

US District Court Judge, Richard D. LeonImage via WikipediaIn U.S. v. Comcast (Case No. 11-cv-00106), U.S. District Court for the District of Columbia Judge Richard J. Leon this week approved the cable giant's acquisition of NBC Universal, Bloomberg News reports, but the federal court will retain oversight to monitor arbitration actions by video distributors.

In giving the thumbs up to the purchase that the FCC okayed by a 4-1 vote last January (see "TUOL" post 1/18/11), Judge Leon, cognizant of online video distributors' fears that the merger would freeze them out of NBC content and concerned the proposed arbitration process would squelch appeals, plans to convene annual hearings for at least two years at which Justice Department attorneys will present data on the number of arbitration requests by video distributors and whether the requests were approved or refused. Judge Leon also wants information on how many arbitration denials wind up before the FCC. Neutral arbitrators would oversee any such distributor dispute.

The Court's final judgment is set to expire in seven years.

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