Hulu Can't Shake Privacy Suit

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United States Magistrate Judge Laurel Beeler last week denied a summary judgment motion by Hulu, LLC, to dismiss a putative class action invasion of privacy suit brought by users of the on-demand streaming video Web site, according to a Reuters wire service article.

The case, In re Hulu Privacy Litigation (Case No. 11-03764I), brought in the United States District Court for the Northern District of California, alleges that Hulu violated the Video Privacy Protection Act ("VPPA") [Pub. L. 100-618] when it purportedly allowed access to users' viewing history to Facebook, Inc. and comScore, Inc. without the users' permission.

Hulu's unsuccessful motion to scuttle the suit argued the plaintiffs were not aggrieved persons under the VPPA because they hadn't sustained actual damages. Additionally, Hulu contended certifying plaintiffs for a class action was untenable because a substantial number of its users employ fake identities.

Judge Beeler, however, without ruling on the merits of the suit, said VPPA merely "requires only injury in the form of a wrongful disclosure," in denying the summary judgment motion. VPPA was enacted in 1987 by Congress in a knee-jerk response to the Washington, D.C. City Paper publishing a record of video store movie rentals by then U.S. Supreme Court nominee Robert Bork.

The plaintiffs, whom the Reuters article reported are scattered among New York, Illinois and California, want $,2500 per alleged VPPA violation, along with punitive damages and costs. They allege Hulu sent their personal viewing histories to Scorecard Research, a market research component of comScore, Inc., and to Facebook, Inc., which allegedly linked the video selections to Facebook registration data, according to the Reuters article.

Hulu is a joint venture of News Corp., Walt Disney Co. and Comcast Corp. through Fox Broadcasting, ABC and NBC Universal, respectively. The venture is expected to generate $1 billion in revenues this year, according to Reuters.

Another motion to dismiss the case is slated to be heard in February, 2014, in which Hulu is expected to argue that it did not knowingly transmit allegedly protected data to marketing and social media outlets in violation of VPPA.

Magazine Media Giant Bolsters TV Holdings

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Des Moines-based Meredith Corp. has added to its stable of tv stations by acquiring two stations from Gannett Co. for $407 million, mediabistro.com FishbowlNY reported.

Meredith adds Top 25 Market St. Louis' KMOV-TV and KASW-TV in Phoenix to its holdings of 12 television stations and approximate 30 magazines with the purchase, which is expected to be finalized during the first quarter of 2014 pending FCC approval. The media conglomerate already owns Phoenix CBS affiliate KPHO-TV.

UPDATE: Love Twibel Case Slated for January Trial

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Los Angeles Superior Court Judge Michael Johnson last week denied a summary judgment motion by attorneys for Courtney Love, clearing the way for her to become the first celebrity to go through a twibel trial for her alleged defamatory statements against her former attorney, The Hollywood Reporter reported last week.

The 49-year-old Love, actress, chanteuse for Hole, widow of Nirvana front man Kurt Cobain, gossip column fodder and overall train wreck, was sued by attorney Rhonda Holmes, whose firm, Holmes & Gordon, represented Love in a 2008 fraud claim against Cobain's Estate, until Love terminated her (see "TUOL" post 5/27/11). The alleged defamatory tweet by Love: "I was f------ devestated [sic] when Rhonda J. Holmes esq. of San Diego was bought off @FairNewsSpears perhaps you can get a quote."

Judge Johnson rejected Love's attorneys' argument that the allegedly offensive statement constituted Internet rhetorical hyperbole/opinion and was incapable of a defamatory meaning. Likewise, Judge Johnson said defendant's claim that the statement did not identify the plaintiff law firm by name, an essential element of a defamation count, was an issue to be decided by a jury.

The plaintiff will have to satisfy the actual malice standard to sustain its twibel claim; in other words, that Love knew her accusation that the plaintiff firm was bribed was false or that she made the alleged claim with reckless disregard of its truth or falsity.

According to newspaper accounts, Love allegedly agreed to settle the suit for $600,000 and publish a retraction, but did not follow through. The case is set for trial January 13, 2014, barring a settlement.

UPDATE: FCC Allows Media Mergers

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The FCC last week approved the mergers of Belo Corp. and Gannett Co. (see "TUOL" post 6/13/13) and the Tribune Co. acquisition of Local TV LLC (see "TUOL" post 7/1/13), Broadcasting & Cable's Web site reported.

The FCC found that neither consolidation violated its rules and considered both acquisitions in the public interest.

Fla. Appeals Court Rules Judge Wrongly Withheld Release of Docs in Murder Case

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Florida's First District Court of Appeal last week unanimously boosted the Sunshine State's Public Records Act, ruling that a trial judge in a murder case wrongly restricted the release of discovery documents, the Florida Times Union reported.

Judge Russell Healey, presiding over the murder trial of Michael David Dunn, issued an order delaying for 30 days the release to the public of documents shared by prosecutors with defense counsel so that he could review them for potential prejudice, according to the Times Union.

Under Florida's Public Records Act [Fla. Stat. secs. 119.01-119.15 (1995)], "[A]ll state, county and municipal records shall at all times be open for a personal inspection by any person." Despite the appellate panel's ruling, either side in the Dunn case could seek a protective order from Judge Healey barring the release of specific records to the public that would require an evidentiary hearing.

Jury Gives Warhol Portrait of Fawcett to O'Neal

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After a three-week trial, a Los Angeles jury voted 9-3 to award an Andy Warhol portrait of the late actress Farrah Fawcett to her decades-long companion, actor Ryan O'Neal, rather than her alma mater, the University of Texas, the Associated Press reported.

After Fawcett, who gained stardom in tv's Charlie's Angels, died of anal cancer in 2009, her estate bequeathed her art collection to the Univ. of Texas. O'Neal, who became a star in the '60s tv version of Peyton Place and whose personal life has been a soap opera ever since, removed from Fawcett's condo one of two 1980 Warhol portraits of the actress with the permission of her estate's trustee that O'Neal claimed was gifted to him by the painter for setting up the portrait session with Fawcett.

The jury sided with O'Neal, despite evidence from the university, including a loan agreement signed by Fawcett to the Warhol Museum that listed her as the owner of both portraits. The contested painting's value was assessed during the trial as ranging from $800,000 to $12 million, according to the AP article.

Earlier this year, a California appellate court allowed O'Neal's defamation suit to proceed against producer Craig Nevius who allegedly accused O'Neal of filching the portrait (see "TUOL" post 2/15/13).

ABC Bars the Door to 'Katie'; No 3rd Season for Gabfest

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High costs and disappointing ratings combined to sink Katie, Katie Couric's syndicated daytime yakathon, which will not return for a third season, the show's distributor, Disney-ABC Domestic TV, announced this week.

As reported in Ad Age, Capitalnewyork.com and elsewhere, Katie will cease production in June 2014, and air reruns through next September. The show's debut in September 2012, drew record ratings, and the gabfest ratings remained in the top 10 among daytime syndicated programs, but was expensive to produce and had seen its audience wane.

Couric, who reportedly pulled down a cool $20 million to join ABC (see "TUOL" post 6/6/11), recently announced plans to join Yahoo! as the Web site's global news anchor (see "TUOL" post 11/25/13).

FCC Looking at Non-Concussion-Related NFL Blackouts

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The FCC yesterday released a proposed rule-making that would eliminate sports-blackout rules created in 1975 that prohibit broadcasting NFL games in markets in which the home team doesn't sell-out the stadium, the Los Angeles Times reported today.

Final action on the proposal wouldn't occur before Spring 2014, at the earliest, the Times reported, but proponents, including Sen. John McCain (R.-Ariz.) and Sen. Richard Blumenthal (D.-Conn.) and opponents, the National Football League and the National Association of Broadcasters, are already girding for battle.

Advocates for eliminating the blackout point out that when the broadcast restriction was first imposed, ticket sales were the NFL's bread-and-butter, whereas now, merchandise and television are the league's principal revenue sources.  Opponents fear no-blackout means pay-tv channels will swoop in to air the gridiron contests at the expense of  revenues to local free broadcasters.

Magazines--Fewer Start-ups, Fewer Closures--Period(ical)

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Citing the annual MediaFinder year-end report, Folio magazine (www.foliomag.com) reported 2013 marked five-year lows in the magazine industry for start-ups (185) and closures (56).

Industry watchers who see the glass as half-full will note the 3:1 ratio of periodical launches to shutdowns as evidence of a stabilizing of the industry. On the other hand, the 185 debuts are 18 percent fewer magazine launches than 2012 figures, according to the Folio article.

Food magazines and women magazines were the most popular genres for start-ups, with 23 new food titles and 13 new titles for women.  On the downside, sports magazines were the hardest hit titles among shutdowns.

Politico: USA Today to Expand Regional Reporting: Will It Cover USA?

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Chicago, Boston, Las Vegas and Miami will get more exposure in Gannett Co.-owned flagship USA Today as the daily intends to bolster its regional coverage of breaking news and enterprise stories, Politico reported this week.

USA Today reporter Alan Gomez already has his marching orders for 2014 as he will relocate to Miami where he also will be the daily's correspondent for Latin America and South America, according to the Politico article.  USA Today has endured a turbulent 2013, doubling its newsstand price, waffling about erecting a paywall and thinning its newsroom herd through voluntary retirements (see "TUOL" posts 9/26/13 & 3/13/13).

USA Today, a hotel chain fave because it slips so easily under guest room doors, is further increasing its brand as Gannett plans in the coming year to insert a condensed version of the daily into 35 smaller dailies in its newspaper empire, with a goal toward ultimately appearing in all 81 of its print properties, according to Politico.

Gallup Poll: Journos Low on the Ethics Chain

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A  random Gallup poll earlier this month of more than 1,000 adults nationwide found only one in five considered journalists honest and ethical, according to posts by Fishbowl NY and Poynter.org.

The poll, "U.S. Views on Honesty and Ethical Standards in Professions," revealed only 21 percent of those queried said newspaper reporters boasted high honesty and ethical standards, the same percentage scored by attorneys.  Television journalists were close behind, with only 20 percent of those polled concluding they were honest and ethical.  In contrast, nurses received an 82 percent favorable rating.

One Poynter faculty ethicist suggested popular opinion was shaped somewhat by the portrayal of journalists in entertainment as smarmy and unethical. All told, over the past 40 years, roughly one-third of the public participating in the Gallup poll found journalists of high honesty and ethical character.

Math is not the strong suit of the pristine staff of "TUOL," but as a journalist and an attorney, will assume 42 percent  of the public holds us in high regard.

R.I. Federal Judge Allows Journos to Live-Tweet Sentencing Hearing; Court System Remains Intact

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United States District Court for the District of Rhode Island Chief Judge William E. Smith this week allowed journalists for the first time to use cellphones and other electronic devices to live-Tweet the sentencing of a criminal case, the Providence Journal reported today.

Judge Smith permitted social media coverage of the sentencing of Joseph A. Caramadre, a  politically connected philanthropist who received a six-year jail term and was ordered to pay millions in restitution for orchestrating an investment scheme that victimized terminally ill individuals.

The high-profile sentencing hearing became a one-time exception to the court's antiquated local rules that proscribe the use of such devices in court.

Laying Less Cable

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Cable television viewership declined at the three largest cable networks, according to the Huffington Post, citing a report in Variety.

Fox News Channel remained the alpha dog among its competitors, but experienced a 13 percent drop in its prime time audience compared to a year ago, according to Variety. Likewise, MSNBC was off 29 percent and CNN 15 percent.  HLN actually showed a 21 percent gain over its 2012 audience.

With 2014 being an election year, polarized voters are likely to boost their favorite cable news network ratings.

Ingwerson Takes the Helm of Christian Science Monitor Next Month

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After 14 years as managing editor of The Christian Science Monitor, Marshall Ingwerson will become editor next month, the Associated Press reported today.

John Yemma, a former Boston Globe and Dallas Morning News reporter who has been the Monitor's editor since 2008, is stepping down to concentrate on writing, the AP article stated.  Before becoming managing editor of the 105-year-old Monitor, which became digital-only in April 2009, Ingwerson was, at various times,  the paper's correspondent in Moscow, Miami, Washington and Los Angeles.

I Post Huckabee?

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The plug is being pulled on the radio talk show of  former GOP Arkansas Gov. Mike Huckabee, but Mediaite.com today reports the failed GOP presidential candidate may be taking a page from Arianna Huffington.

Mediaite cites a Craigslist ad looking for reporters to provide content for the Huckabee Post, which the ad claims has offices in New York and Washington DC. Huckabee has not commented on the possible news aggregate site, but has expressed interest in the 2016 presidential race. Huckabee has trouble separating church from state at times, so "TUOL" suspects he's keeping an eye on the current Pope should that position become available.

NPR Banks $17m in Grant Money--That's a Lot of Tote Bags

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National Public Radio today will announce $17 million in grants, the lion's share of which NPR will devote to financing a new Web and mobile platform, the New York Times reported today.

Roughly $10 million in grants will go toward creating, according to NPR, a "seamless local-national listening platform." Sources for the grant money include the Bill & Melinda Gates Foundation, the John & James Knight Foundation, the Ford Foundation and the Wallace Foundation, the Times article noted.

Because the grants are for specific projects, they will not affect NPR's $6 million deficit that is expected to prompt a 10 percent staff reduction in 2014 (see "TUOL" post 9/13/13).

Los Angeles Register Daily Newspaper to Debut in 2014

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A seven-day daily newspaper focused on Los Angeles local news, the Los Angeles Register, will debut in 2014, the Orange County Register ("OCR") reported yesterday.

Owner Aaron Kushner, whose 2100 Trust LLC purchased Freedom Communications Inc. in July 2012, boosted the OCR staff by 200, to provide local LA coverage  to challenge The Los Angeles Times. The OCR article said the Register also plans to unveil LA-area community weeklies next year.

Report: NY Observer Redesign Smokes Salmon-Colored Paper Stock

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Advertisers are currently getting a peek at the redesigned The New Observer weekly newspaper that is supposed to hit newsstands in February 2014, but Capitalnewyork.com this week spilled the beans that the new Observer will jettison its distinctive salmon-colored paper.

The Observer, which each Wednesday covers Gotham City's media, politics, publishing, entertainment, real estate and cultural scene, also will debut a new logo and return to a tabloid format that it boasted in 2006, before returning to a broadsheet format two years ago, according to the Capitalnewyork article.  The Observer, which has been around since 1987, is also expected to add "arts" and "style" sub-sections in its new design format.

It remains to be seen whether the paper's upscale readership rebels at the changeover from salmon to white paper by swimming upstream to another publication. Maybe white type on a Beluga caviar-black paper might appease readers.

The Red Bulletin: Something to Read After Energy Drink 'Gives You Wings'

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Whenever the hard-working staff of "TUOL" has a hankering for a refreshing cold can of taurine and glucuronolactone, we reach for Red Bull, the 26-year-old energy drink developed in Austria by the Red Bull GmbH company.

Like everyone else, we knew that 35 billion cans of the energy elixir have been consumed in more than 165 countries, but "TUOL" was surprised to learn, courtesy of Folio magazine (www.Foliomag.com), that the company's six-year-old magazine, The Red Bulletin, has a circulation of 2.7 million, is printed in five languages, and is available by subscription and on newstands.

The magazine, which also has a Web site and an app, is a stellar example of what industry types call "brand journalism." Published by the energy drink's media arm, Red Bull Media House, the magazine resembles other lifestyle periodicals. A recent issue, for example, included the following articles: "Actor Eric Bana discusses his vintage car fetish," "An interview with one of the developers of the new Call to Duty Game," and "Formula One driver rides one of the world's oldest motorcycles."

Compelling reading. Unfortunately, when the staff of "TUOL" slakes its thirst with caffeine-laced Red Bull, we can't sit still long enough to read a magazine.

GOP Reps. Fear FCC Study Effort to Reintroduce Fairness Doctrine

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The Federal Communications Commission's $900,000 study, "Multi-Market Study of Critical Needs," is drawing fire from Republican legislators who are concerned that the agency is laying the groundwork for reintroducing the Fairness Doctrine, Ad Week reported today.

The Fairness Doctrine, which was implemented by the FCC in 1949, was derided by the agency in 1987 as an unconstitutional infringement on the free press and expunged from the books two years ago (see "TUOL" post 8/24/11). The doctrine was aimed at airing conflicting views about controversial issues and required broadcasters to provide time for a response to personal attacks levied by the broadcasters.

The FCC study that has solons on edge intends to examine how tv stations choose news stories and how the news is produced and prioritized, according to the Ad Week article. Acquiring that data for analytic purposes would involve interviewing journalists about factors that affect their story selection and delving into their news philosophy.

Critics of the study view this as a blatant attempt to influence journalists' political speech. Newly appointed FCC chair Tom Wheeler has until January 10, 2014, to respond to questions posed by the GOP lawmakers, Ad Week reported, including why the study is confined only to the Columbia, South Carolina, market rather than tv markets of varying sizes and geographic locations.

BU J-School Snags NY Times Media Columnist David Carr for Newly Endowed Professorship

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The Boston Globe reported today that The New York Times' prominent media columnist David Carr will join Boston University's College of Communication ("COM") in January as a professor in a newly endowed chair devoted to exploring business models to sustain journalism in a digital age.

Carr will continue to write his Times column, but will teach one course a semester at COM where he will spend two days a week, according to the Globe article. Carr will be a non-tenured professor of the practice on a contract with COM. Tom Menino, Boston's Mayor the past two decades, also will be joining BU's faculty next year in a similar arrangement.

The new professorship was endowed by a $1.66 million gift from BU alum, trustee and Bloomberg Media Group CEO Andrew Lack, with BU trustee Alan Leventhal kicking in more than $830,000.  Among other courses, Carr will teach media criticism.

It will be intriguing to see how the outspoken Carr adjusts to academia, given that he wrote in a March 31, 2013 column: "Having seen many journalism programs up close, I can say that most are escalators to nowhere."

The hard-working staff of "TUOL" just completed his 16th year of teaching Media Law at COM.

'Scripps-y' Gets Newsy

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Columbia, Missouri-based Newsy, the five-year-old digital video news platform founded by CEO Jim Spencer, has been acquired in a $35 million cash deal by media conglomerate E.W. Scripps Co., TechCrunch.com reports.

The Cincinnati-based Scripps, which owns 19 tv stations and 14 newspapers in 13 markets, added Newsy as a subsidiary to add a digital video component to its stable. Spencer and Newsy's 35 full-time and part-time staffers will continue to work out of Columbia, according to TechCrunch.

9th Cir. Judges Ready for Their Close Up? En Banc Hearings Live-Streamed Starting Today

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The United States Court of Appeals for the Ninth Circuit was scheduled today to become the first appellate court in the nation to live stream all of its en banc hearings on its Website, the Los Angeles Times reported recently.

Although en banc hearings involving the court's chief judge and 10 other jurists amount to about 20 cases heard by the court annually, video streaming marks progress in the eyes of free press advocates who believe the First Amendment and Sixth Amendment of the Constitution should open all federal courts, including the Supreme Court, to video recording.

Most appellate court cases are decided by three-judge panels. The Times article last week noted the scheduled inaugural video streamed case concerned law enforcement officials collecting and storing arrestees' DNA profiles, even where charges against individuals subsequently dropped.

2013 Can't End Soon Enough for AOL: Editor-in-Chief Said Soon to Be Out the Door

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Seven months after AOL haled her arrival, Editor-in-Chief Cyndi Stivers is on her way out, according to an article in the New York Post.

No official word from AOL, according to the Post, about Stivers, who left a position as editor of the Columbia Journalism Review to join AOL (see "TUOL" post 5/13/13). Her departure would  be a blow to AOL, which this year eliminated 40 percent of its hyperlocal news AOL Patch editorial staff (see "TUOL" post 8/19/13) and reduced the number of Patch sites from 900 to 14, the Post reported.

Judge Denies Access to Jurors' Twitter Accounts in Arias Sentencing Phase

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Maricopa County (Ariz.) Superior Court Judge Sherry K. Stephens this week denied a request by attorneys for convicted killer Jody Arias to compel jurors to divulge their Twitter account information, Phoenix-based ABC15.com reported.

Arias was convicted last May for the 2008 murder of her ex-boyfriend Travis Alexander, but the jury was unable to agree on sentencing, prompting a retrial on the sentencing phase in the case in which the state is seeking the death penalty.

Defense counsel asked Judge Stephens for the jurors' Twitter account information so that their tweets could be monitored to ensure no discussion of the case outside of the courtroom. The prosecution opposed the move as invasive of the jurors' right to privacy.

Judge Stephens ruled there was no basis to order the data revealed absent a credible allegation of juror misconduct.