Archive for the ‘Old Blog Posts’ Category

Ensuring the Super Bowl is Still All About the Commercials: Federal Crackdown on Illegal Sports Streaming Websites Leads to Arrest of Michigan Man

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Everyone already knows that Tom Brady wields tremendous power in the sports world. Add to that a Brazilian super model wife and the guy has some serious social capital as well. But who knew the former Michigan quarterback’s casual comment to a group of reporters could trigger a federal investigation that resulted in the shutdown of sixteen illegal sports streaming websites and the indictment of nine of the sites’ operator? This is exactly what happened last Thursday when Tom Brady expressed his awe that he had in one year gone from “watching the game on an illegal Super Bowl website” as he rehabbed his foot in Costa Rica to playing in the big game. Within hours prosecutors had launched an investigation of similar websites. With that kind of political capital and a face that I’m pretty sure could single handedly accomplish world peace: Tom Brady for president?

The crackdown is perhaps not surprising considering that the commercials set to air during the Super Bowl generated $250 million in revenue for NBC. That all falls apart if fans are tuning into illegal live streams rather than the NBC broadcast. Yonjo Quiroa, the 28-year-old man arrested in Michigan on charges of copyright infringement for operating nine live streaming sports websites, earned more than $13,000 from merchants purchasing advertising space on his sites. While that revenue was made on other sporting events besides the Super Bowl, as one ad executive explained, the Super Bowl is “essentially our prom night.” The stakes are higher and those with deep pockets care more.

U.S. Attorney Preet Bharara said in a statement on Thursday that although using such illegal websites may be tempting to sports fans, “These websites and their operators deprive sports leagues and networks of legitimate revenue, forcing spectators and viewers to bear the cost of this piracy.” Thanks, Tom Brady for passing on the cost of your Costa-Rica-viewing of Super Bowl XLV to the people.

Although for most viewers the Super Bowl is arguably the one broadcast event of the year where they don’t mind seeing the ads, the debate surrounding web streaming of events or shows that others have paid to air or have invested money in developing is a hot-button issue as of late (see previous MTTLR blog post, for example, here). It hardly needs to be mentioned that there is a bit of a fight in Congress over how things should and shouldn’t be shared over the Internet. It bears remembering that as that battle is waged with the pen in the legislature, enforcement is carried out in a manner federal prosecutors feel fit on the ground. The consequences of that policy are very real to Mr. Quiroa who faces up to 5 years in federal prison for the operation of the sports streaming websites. As the debate continues in Congress and as we sit back and watch the game and commercials that we will all be talking about for the next week and beyond, it is worth thinking about what we want the Internet to look like and whose interests we think are most important to protect.

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February 12th, 2012 at 4:30 pm

UPDATE: Creates YouTube Re-enactment of Proposition 8 Trial

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I posted a few weeks ago about the Supreme Court’s decision to temporarily stay YouTube streaming in the Proposition 8 trial.  As expected, the Supreme Court later extended its temporary stay into a permanent block of the proposed stream.  The Northern District of California had to change its rules to allow for the streamed video, and the Supreme Court held that it did not properly followed the guidelines for changing its rules.

Instead of taking the ruling lying down, filmmaker and journalist John Ireland decided to take the law into his own hands by creating a re-enactment of the trial.  Ireland is filming the project with professional actors who are volunteering their time.  The episodes can be found at or also contains a wealth of other information related to the case, such as a link to the day-by-day trial transcripts.  Currently, the first episode is complete and ready for viewing.

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February 8th, 2010 at 1:01 pm

Tiffany v. eBay – Transnational Trademark Problems?

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by Jeff Liu , MTTLR Associate Editor

Last summer, a federal district court ruled, in Tiffany v. Ebay, that online marketplace eBay was not liable under trademark and unfair competition law for facilitating the sale of counterfeit items on its website. The court noted that it is a “Trademark owner’s burden to police its mark, and companies like eBay cannot be held liable for trademark infringement based solely on their generalized knowledge that trademark infringement might be occurring.” Some U.S.-based commentators praised the decision; others were somewhat more critical. Few, however, commented on the way this decision has the potential to the put the U.S. directly at odds with several key European Union countries on contributory liability for trademark violations.

While this decision represents a victory for eBay and other online marketplaces in the United States, courts in other countries have shown less sympathy for eBay. Especially in European jurisdictions decisions have tilted in support of trademark holders rather than the operator(s) of online marketplaces. Several judicial decisions handed down by countries in the European are opposite to the decision handed down in Tiffany Inc. Two important decisions highlight the conflict at hand. On June 30, 2008, a French court ordered eBay to pay 61 million dollars in compensation to LVHM for allowing the sale of fake merchandise on its website. Just a month earlier, another French court had ordered eBay to pay Hermes a compensation of 20,000 Euros for the sale of counterfeit merchandise on its website. And both of these decisions come in light of decision by a German appeals court in April, 2008 against eBay on the same issue. The German appeals court ruled eBay had to take preventive measures against the sale of fake Rolexes on its website. Both the French and German courts seem to have taken the position that eBay has a responsibility to prevent the sale of counterfeit goods on its website, but the U.S. court has taken the opposite position, that the burden falls onto the holder of the trademark. In an increasingly global marketplace, this conflict will have to be resolved.

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February 12th, 2009 at 9:13 pm

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Testing the Scope of Fuel Economy Standard Preemption: The New York Taxicab Cases

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by: Joshua E. Ney, Associate Editor, MTTLR

Image Feeding Frenzy by 54east. Used under a Creative Commons BY-NC 2.0 license.

Under the Energy Policy and Conservation Act (EPCA), the National Highway Traffic Safety Administration (NHTSA) prescribes corporate average fuel economy (CAFE) standards for passenger automobiles and light-duty trucks.1 The CAFE standards specify a minimum fleet-wide average fuel economy applicable to manufacturers in a given model year.2

Since the enactment of the EPCA, the NHTSA has exercised this authority with relatively unchallenged exclusivity. The EPCA’s express preemption clause forbids States to “adopt or enforce a law or regulation related to fuel economy standards.”3 Until recently, few states had sought to regulate automobile fuel economy, and no court had determined that a state or local law violated this preemption clause. That changed on October 31, 2008, when a federal judge blocked the implementation of a new rule promulgated by the New York City Taxi & Limousine Commission (TLC).4 The ongoing legal battle is giving courts their first opportunity to define the scope of EPCA preemption.

The 2007 Rule: Preemption of State-Mandated Fuel Economy Standards

On December 11, 2007,5 the TLC approved a rule (the “2007 Rule”) requiring all taxicabs coming into service on or after October, 1, 2008, to have “a minimum city rating of twenty-five (25) miles per gallon.”6 Beginning October 1, 2009, the 2007 Rule would require all taxicabs coming into service to have a minimum rating of thirty (30) miles per gallon.7 In contrast, most of the current taxicabs in the City achieve only 12–14 miles per gallon.8

In September 2008, a coalition of affected parties filed a complaint in the United States District Court for the Southern District of New York, asserting that the EPCA preempted the 2007 Rule.9 The plaintiffs included the Metropolitan Taxicab Board of Trade (MTBOT), a trade association made up of taxicab fleets in the City.10 The court granted the plaintiffs’ motion for a preliminary injunction, finding that the plaintiffs had “demonstrated a likelihood of success on the issue of preemption.”11 In the court’s view, “Congress’s undoubted intent was to make the setting of fuel economy standards exclusively a federal concern.”12 Thus, the 2007 Rule fell squarely within the “ordinary meaning” of the EPCA’s preemption clause.13 The court rejected the City’s argument that the preemption clause only applies to fuel economy standards as they relate to manufacturers or sellers (as opposed to consumers, such as taxi owners).14

The 2008 Rule: Preemption of Voluntary Fuel Economy Incentives?

Following the district court decision, New York City Mayor Michael Bloomberg announced that the City would replace the enjoined 2007 Rule with “a series of initiatives to increase the use of fuel efficient and environmentally friendly taxicabs, through new financial incentives.”15 The incentives proposed by the Mayor (the “2008 Rule”) involve the City’s taxicab “lease cap” system. Under the “lease cap” system, a taxicab owner leasing his or her licensed taxicab to a driver may not charge a lease rate greater than the Standard Lease Cap.16 The Standard Lease Cap currently ranges from $105 to $129 per shift, depending on the time of the shift.17 Under the proposed 2008 Rule, fleet owners leasing fuel efficient vehicles will be allowed to charge drivers an additional $3 per shift, while the lease cap applicable to owners of non-fuel efficient vehicles will decrease by $12.18 These incentives are intended to compensate for the higher cost of purchasing fuel efficient vehicles.19

The precise contours of the 2008 Rule will not be clear until the TLC completes a formal rulemaking process.20 However, the president of the MTBOT has already voiced his intention to challenge the Rule.21 This legal challenge will tee up a novel question regarding the scope of EPCA preemption: May a State or political subdivision adopt voluntary incentive programs to encourage the purchase of fuel efficient vehicles where it could not have mandated the purchase of such vehicles?22

To resolve this question, the court will need to determine whether the 2008 Rule is “related to fuel economy standards” within the meaning of the EPCA’s preemption clause. In general, where a federal statute contains an express preemption clause, the preemption determination rests on the “plain wording” of the clause.23 In this case, however, the preemption clause’s use of “related to” language renders a simple “plain wording” analysis problematic.24 The Supreme Court has pointed out that “[i]f ‘relate to’ were taken to extend to the furthest stretch of its indeterminacy, then for all practical purposes preemption would never run its course, [and the effect would be] to read the presumption against preemption out of the law.”25 Rather, the court must “go beyond the unhelpful text and the frustrating difficulty of defining [‘related to’] and look instead to the objectives of the [EPCA] as a guide to the scope of the state law that Congress understood would survive.”26

In light of this guidance, the court must answer the following question to determine whether the EPCA preempts the 2008 Rule: In enacting the EPCA, did Congress intend to withdraw from the States the authority to provide economic incentives influencing consumer choices with respect to vehicle fuel economy? If the answer is yes, then the 2008 Rule “relates to” fuel economy standards, and the EPCA preempts the Rule. If the answer is no, then the 2008 Rule does not “relate to” fuel economy standards and survives EPCA preemption.27 This case will present a matter of first impression for the court. Furthermore, the Committee reports accompanying the bill that became the EPCA did not discuss the intended scope of the statute’s preemption clause.28 Thus, it is difficult to predict how the court will rule. Stay tuned.

1 The EPCA directs the United States Secretary of Transportation to prescribe the CAFE standards. 49 U.S.C. § 32902(a) (2006). The Secretary has delegated this authority to the NHTSA. 49 C.F.R. § 1.50(f) (2006).
2 49 U.S.C. § 32901(a)(6).
3 49 U.S.C. § 32919(a) (“When an average fuel economy standard prescribed under [the EPCA] is in effect, a State or a political subdivision of a State may not adopt or enforce a law or regulation related to fuel economy standards or average fuel economy standards for automobiles covered by an average fuel economy standard under [the EPCA].”)
4 Metro. Taxicab Board of Trade v. City of New York, No. 08 Civ. 7837 (PAC), 2008 WL 4866021 (S.D.N.Y. Oct. 31, 2008).
5 Press Release, New York City Taxi & Limo. Comm’n, TLC Unanimously Approves Regulations Leading to a Cleaner, Greener NY Taxi Fleet (Dec. 11. 2007).
6 New York, N.Y., TLC Rule § 3-03(c)(10) (2008).
7 TLC Rule § 3-03(c)(11).
8 William Neuman, As First Plan Stalls, Mayor Tries New Push for Green Taxis, N.Y. Times, Nov. 14, 2008.
9 Metro. Taxicab, 2008 WL 4866021, at *1.
10 Id.
11 Id.
12 Id. at *8 (quoting Green Mountain, 508 F. Supp. 2d at 307).
13 Id. at *9.
14 Id. (citing Engine Mfrs. Ass’n v. South Coast Air Quality Mgmt. Dist., 541 U.S. 246 (2004), (holding that a state law that restricted emissions in new vehicles was preempted by the Clean Air Act regardless of whether it targeted purchasers or manufacturers.))
15 Press Release, Office of the Mayor, New York City, Mayor Bloomberg Announces New Incentive/Disincentive Program to Reach Goal of Green Taxi Fleet (Nov. 14, 2008).
16 New York, N.Y., TLC Rule § 1-78(a) (2008).
17 TLC Rule § 1-78(a)(1).
18 Press release, Office of the Mayor, New York City, supra note 15.
19 Id.
20 Id.
21 Neuman, supra note 8.
22 Cf. Engine Mfrs. Ass’n v. South Coast Air Quality Mgmt. Dist., 541 U.S. 246, 255 (2004), (declining to resolve the application of Clean Air Act preemption to voluntary incentive programs).
23 Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, 508 F. Supp. 2d 295, 351 (D. Vt. 2007).
24 See Id. at 353.
25 See New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 656 (1995) (cited in Green Mountain, 508 F. Supp. 2d at 353).
26 See Green Mountain, 508 F. Supp. 2d at 353 (quoting Travelers 514 U.S. at 656).
27 In context of the federal ERISA statute, whose express preemption clause also includes broad “relate to” language, the Supreme Court has found that a state program did not “relate to” the federal requirements where the state program “merely provide[d] some measure of economic incentive to comport with the State’s requirements.” Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 332 (1997).
28 Green Mountain, 508 F. Supp. 2d at 354.

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February 10th, 2009 at 9:12 pm

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Criminal charges for cell-phone self-portraits – more harm than good.

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by Melanie Persinger, MTTLR Associate Editor

Image Lincoln by Katy/teapics. Used under a Creative Commons BY-NC-SA 2.0 license.

As new technologies become part of our lives, teenagers figure out a way to use these technologies to do what it is they do best: get themselves into trouble. Cell phones and picture messaging are no exception. This fall, a fifteen-year-old girl in Ohio was arrested for taking nude photographs of herself and sending them to other minors. The teenager was charged with illegal use of a minor in nudity oriented materials and possession of criminal tools under Ohio law 2907.323(A)(3). The charges could also qualify the girl to be classified as a sex offender, requiring her to register annually. An Ohio prosecutor, Ken Oswalt, said that the other minors who received the photographs might also be charged for possession of child pornography.

The Ohio case was recently settled out of court, and the young woman in that case will not have to register as a sex offender. But the law at issue was Ohio’s version of Megan’s law, which has been enacted, with slight variations, in all fifty states and the District of Columbia. This means that a similar case could potentially come up anywhere in the United States. In fact, the case in Ohio is by no means the first instance of a minor being faced with criminal charges for taking and sending, or posting online, nude photographs of themselves. According to Fox News, “Similar cases have been reported in New Jersey, New York, Alabama, Utah, Pennsylvania, Texas and Connecticut.” Michigan and Florida have also seen similar cases. Because this is a growing trend, it is important to ask ourselves if criminal charges are the appropriate way to deal with these teenagers’ misconduct.

The aim of laws of this type (preventing sexual offenses against minors) is to prevent harm to the child. Proponents of the law in issue argue that this means protecting children from harm they could cause to themselves in addition to protecting them against harm caused by others. While the current law does this to a certain extent, it is also overly broad in that it imposes a different, and arguably worse, harm on the minor. It is true that once the photographs become public, they will likely haunt the teenager forever or could possibly end up in the hands of adults who are looking for child pornography, both of which are harms that we should be concerned about. However, imposing criminal charges will not undo the fact that the photograph(s) are now out in public. Additionally, imposing criminal charges, especially requiring the minor to register as a sex offender, is also likely to haunt them forever. It is hard to see how preventing harm to minors justifies imposing other harms on them: the stigma of a criminal record and being labeled as a sex offender.

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February 10th, 2009 at 9:07 pm

Policing the Police – Citizen Video Footage


by: Wayland Radin, MTTLR Associate Editor

As the ubiquity of Apple’s iPhone constantly reminds us, cellular phone technology has progressed to the point that its hard to find a phone that doesn’t have a camera. While remarkable footage has infrequently reached the public eye in the past, the omnipresence, simplicity, and unobtrusive nature of these cameras, coupled with the means to make their recordings immediately and publicly available (e.g. YouTube, Flickr) has led to a new method of citizen oversight of public servants.

The vast majority of the recordings made publicly available in this way chronicle what the owner of the camera phone believes to be suspect actions of law enforcement officers. For instance, the now infamous tasering of University of Florida student at a political forum has been viewed well over 3 million times.

A similar incident in which a UCLA student was tazed for apparently failing to exit a University library quickly enough has been viewed upwards of 2 million times (in various YouTube iterations.)

(See the Daily Bruin article detailing the event.)

Though the potential effects of this mode of citizen oversight are far-reaching, they are felt most directly by the owner of the camera and the subject of the recording. In Oregon, several citizens have been ticketed or arrested for recording the activities of on-duty police officers, under a state law allowing audio recording only if at least one party is aware of the recording. The man who was ticketed (and who filmed the video below) is now challenging the actions of the police department in a lawsuit.

And in New York, a police officer was stripped of his badge and remains under investigation for actions recorded in this video.

While it may seem obvious that one should have the right to record what one would otherwise see and hear in public, the law is far from settled on the matter. It is unclear what expectation of privacy on-duty police offers might have, if any, given that they are performing a civic service in public. Police officers, however, clearly have an interest in their safety and so have argued that recording of police activity poses a threat to the officers themselves.

Because the current laws are unclear and inconsistent, as is their enforcement, I think more comprehensive regulation is likely. I would hope that this future regulation will explicitly allow citizens to record public servants performing their duties. There will, of course, be some caveats to protect the privacy of off-duty officers and the safety of all those involved, but on the whole I think we will (and should) see more instead of less citizen oversight enhanced by technology.

ETA:For further information on citizen media activism, visit the Citizen Media Law Project

ETA2:YouTube and PBS Vote 2008 have partnered to create the Video Your Vote initiative. They encourage voters to take and share video of their voting experiences, another opportunity for tech-assisted citizen oversight of government activities. Here’s an overview:

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October 14th, 2008 at 10:35 am

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Licensing online quotations – link roundup

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by Nancy Sims, MTTLR Blog editor

In early June, news site the Drudge Retort received DMCA takedown notices from the Associated Press, for several pieces containing 39- to 79-word quotations from AP articles . Although the AP quickly backed off on their DMCA threat, they had previously published a pricing structure (screenshot from June 19, above) for blog quotations of their articles, with costs of $12.50 for as little as 5 words. Bloggers are crying “foul”, claiming fair use and “hot news” privileges.

MTTLRblog will update this post as the conversation continues. We welcome your comments and link suggestions.

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June 19th, 2008 at 4:37 pm

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The Debate Fueling the Legislative Gridlock over Telecom Immunity

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by: Manoj Ramia, Associate Editor, MTTLR

Image “Hinata rewiring the patch panel” by Gerard van Schip. Used under a Creative Commons BY-NC-SA 2.0 license.

Articles on “telecom immunity” have peppered newspapers and magazines for some time now. Proposed legislation, supported by the President, would shield telecom companies from any legal liability arising from aid they provided to the government in monitoring the information that passes through the telecom companies’ routers, hubs, and switches. This Blog, back in November, covered the ins and outs of why the telecom companies are liable and ended with the possibility that legislation might include an immunity provision for telecom companies. 1 Since then, things have managed to both change and stay the same – the Senate passed a surveillance bill that included a telecom immunity provision while the House recently passed a bill barring immunity. 2 This post examines the ongoing legislative debate, the ideas motivating the various sides, and whether the gridlock will end in the foreseeable future.

The Case For Telecom Immunity

Telecom companies cooperated with the government’s request to monitor information flowing through the companies’ networks under the impression that the government’s surveillance program was legal. To punish these companies now for doing something they thought to be legal would be unfair. 3 And denying immunity and subjecting telecom companies to lawsuits would discourage them from cooperating with the government’s requests for surveillance in the future, despite the possibility of an urgent need to do so. 4

Subjecting telecom companies to trial would also expose “state secrets” – the telecom companies would want to point to the documents they received
from the government arguing for the legality of the surveillance programs in order to escape liability. 5However, these documents contain sensitive information gathered by the nation’s intelligence agencies, and the government would seek to prevent them from being made public in the course of a trial,
hampering the telecom companies from defending themselves. Granting retroactive immunity would keep these classified documents out of the public eye while also keeping the telecom companies out of court.

The Case Against Telecom Immunity

The big concern with granting retroactive immunity to telecom companies is not that the telecom companies will get off the hook, but that the government will. If immunity is granted, the telecom companies will never have to show the documents they relied on to allow the government to monitor communications. 6 If these documents are never seen, the nature and extent of the warrantless wiretaps will never be known. 7As a result, it would be impossible to fully analyze the legality of the surveillance programs and hold anyone legally responsible for potentially breaking the law.

The Real Debate?

Looking at both sides of the debate, it becomes apparent that bubbling under the surface of the telecom immunity debate is bickering over accountability for the warrantless surveillance conducted by the government after 9/11. Support for telecom immunity implies protecting the Executive Branch from scrutiny regarding its efforts to protect the country while opposition implies a desire to further examine the actions of the President and, if need be, hold people accountable for their actions. 8 This perspective informs the activity (and inactivity) in the legislative arena so far.

Some Progress on the Legislative Front, But Perhaps Not Much

At the outset of the debate, the President said he would veto any surveillance bill that did not grant immunity to telecom companies.9 After some debate, the Senate passed a bill with a telecom immunity provision last month.10 The House has had a more difficult time reaching an agreement on a bill acceptable to all. After much debate, the House went into an unprecedented secret session – the first since 1983 and only this fifth in Congressional history – and came out of it with a bill that does not contain a telecom immunity provision but does attempt to find a middle ground between the two sides of the debate.11 Since proponents want a telecom immunity provision to prevent classified information from being introduced in court, the House bill allows the judge to review the classified information in secret to determine if the telecom company in the suit is liable.12 The next step is for the House and Senate to iron out their differences and, though the House attempted to find a middle ground between simply a yes or no on telecom immunity, there is still much distance to cover between House and Senate versions of the bill. Given the volatility of the debate so far, it is likely to continue for some time.

1 Joseph Eros, An Overview of Telecommunications’ Companies Involvement in Domestic Espionage: Part II, The MTTLR Blog, Nov. 13, 2007.
2 Editorial, Wiretap Showdown , Wall St. J., Feb. 12, 2008.
3 NYT (Rhetoric) Eric Lichtblau, Rhetoric: High; Anxiety: Low, N.Y. Times, Mar. 1, 2008.
4 Id.
5 Id.
6 Glenn Greenwald, Signs of Life from House Democratic Leaders,, Mar. 12, 2008.
7 Id.
8 Id.
9 Pamela Hess, House Democrats Reject Telecom Immunity, The Associated Press, Mar. 11, 2008.
10 Siobahn Gorman, House Democrats Defy White House on Spy Program, Wash. Post., Mar. 11, 2008.
11 Hess, supra note 9.
12 Id

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April 3rd, 2008 at 8:24 am

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The ADA and Personality Testing – The 7th and 8th Circuit Split on the Permissibility of the MMPI in Pre-Offer of Employment Screening

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by: Thomas Ritzert, Associate Editor, MTTLR

Image “Soul Searching” by *YourGuide.
Used under a Creative Commons BY-NC-ND 2.0 license.

In 2006, 46 percent of US employers drew from a pool of over 8,000 different psychological and personality tests for use in screening job applicants.1 In fact, psychological testing in the hiring process has become so prevalent that testing firms now comprise a $400 million industry; a single test, the Myers-Briggs Type Indicator, is administered to over 2.5 million people per year.2 Many employers offer jobs in more than one jurisdiction and use these tests as part of an online application process, accessible by any job seeker with an internet connection.3 Internet-based testing is a risky move for employers, because although a broad array of federal and state regulations protect job applicants from certain inquiries, there is uncertainty as to the precise requirements of these regulations, what tests can be used by employers, and who has standing to challenge the testing.4

One example of this uncertainty is the current split between the Seventh and Eighth Circuits on the proper application of the Americans with Disabilities Act’s (ADA) prohibition of pre-offer medical examinations5 in the context of personality and psychological testing, particularly tests based on the Minnesota Multiphasic Personality Inventory (MMPI). This post focuses on the limitations that the ADA imposes on such testing, and concludes that the Seventh Circuit’s approach to the issue in Karraker v. Rent-a-Center (holding that the MMPI and tests based on questions from the MMPI are medical examinations prohibited in the pre-offer stage of the hiring process) is the correct application of the statute.

The ADA’s Prohibition of Pre-Offer Medical Examinations

The principal purpose of the ADA is “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” and to “provide clear, strong, consistent, enforceable standards” addressing such discrimination.6 The ADA defines individuals with disabilities as persons who 1) have a “physical or mental impairment that substantially limits one or more” major life activities; 2) “have a record of such impairment”; or 3) are “regarded as having such impairment.”7 Title I of the ADA covers employment discrimination, and one protection that Congress has created for individuals with disabilities is the right to be free from pre-offer medical examinations in the hiring process.8

Specifically, the Act provides that “a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.”9 However, an employer may “make preemployment inquiries into the ability of an applicant to perform job related functions”10 and may also “require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination11 so long as: 1) “all entering employees are subjected to such an examination regardless of disability”,12; 2) the “information obtained regarding the medical condition or history of the applicant”13 is kept confidential; and 3) the “examination or inquiry is shown to be job-related and consistent with business necessity.”14

In short, the rule is that while an employer may ask an applicant certain basic questions to find out how the applicant will be able to perform job related functions, an employer may not subject job applicants to pre-offer medical testing. They may, however, condition the job offer upon satisfactory results from a post-offer examination so long as certain conditions of fairness and confidentiality are met. Although this rule seems straightforward enough, there is disagreement over the meaning of the term “medical examination.”15

The Eighth Circuit Approach

In 1990, Robin Miller, who had been a police officer for 10 years in Texas, applied for a position as a police officer with the city of Springfield, Missouri.16 The city required all police recruits to pass two tests before extending an offer of employment – an agility test and the MMPI-2.17 Between 1990 and 1993, Miller applied for a job with the police department three times but was rejected on the first two occasions for failing the agility test.18 Miller successfully completed the agility test in her third application but ran into trouble with the MMPI-2.19 Miller’s test results indicated “above-normal depression” and Springfield declined to extend an offer as a result.20

Miller responded by suing the city for violating the ADA by subjecting her to the MMPI-2 in the application process.21 In a very brief decision, the Eighth Circuit severely limited the effect of the ADA’s ban on pre-offer medical examinations. The court cited EEOC guidelines interpreting the ADA’s rule for post-offer medical examinations, specifically the provision that “if certain criteria are used to screen-out an employee or employees with disabilities as a result of such an examination or inquiry, the exclusionary criteria must be job-related and consistent with business necessity….”22 Relying on this guideline, the court wrote “we easily conclude that appropriate psychological screening is job-related and consistent with business necessity where the selection of individuals to train for the position of police officer is concerned.”23 Furthermore, the court held that regardless of whether Miller was actually screened out by a test issued in violation of the ADA, she was not in fact disabled, and therefore had no standing to challenge the pre-employment screening under the ADA.24

There is no question that the ADA allows employers to “require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination.”25 However, it also clearly bans such screening before an offer is made.26 The Miller decision passes over the ADA’s ban on pre-offer medical examinations and, at least in the context of police hiring, treats a pre-offer examination as if it were a post-offer test.

One explanation for the Eighth Circuit’s holding is that the court simply saw no practical reason for the distinction between pre-offer and post-offer testing under the ADA since unsatisfactory results in either case will result in a rejection of employment. Indeed, the fact that the court applied only two sentences of analysis to Miller’s claim that use of the MMPI in her application violated the ADA suggests that it was basing its decision more on the obvious conclusion that cities need to screen out mentally unstable police recruits than on the actual timeline and procedure for such screening mandated by the ADA. While from a practical standpoint this may be true, it is not the law passed by Congress. In another case concerning police officer application procedures, the Federal District Court for the Southern District of Florida held that pre-offer examinations were barred by the ADA even in the law enforcement sector.27 Acknowledging the need to have mentally stable law enforcement officials, the court held that “on this issue, however, the statute is clear… the ADA prohibits pre-offer ‘medical examinations.’”28 The court refuted the type of line-blurring between pre-offer and post-offer regulations found in Miller, noting that:

While the pre/post employment medical examination distinction may seem pointless, it actually serves several important functions. First, it allows an applicant to demonstrate that he has the necessary job qualifications without regard to any disability; second, by permitting the examination to take place only after an offer of employment is made, it forces employers to demonstrate that their reason for not hiring an applicant is job related, or a business necessity; third, this scheme requires an employer to make an effort to reasonably accommodate an applicant’s disability.29

This explanation of the reasons for the pre-offer ban illustrate why the court’s approach in Miller is inconsistent with the rules Congress intended to enact in the ADA. Congress did not create separate rules for pre-offer and post-offer screening for no reason or unknowingly, and the pre-offer rules should be enforced.

The Seventh Circuit Approach

Christopher, Steven and Michael Karraker were brothers working for Rent-A-Center (RAC), a chain of stores offering rent-to-own deals on furniture and household appliances.30 Each of the brothers wanted to move up the chain-of-command at the store,31 and progress from their positions as floor salesmen to middle management.32 In order to do so, however, they had to take RAC’s “APT Management Trainee-Executive Profile,” an assessment comprised of nine tests covering math, language, interests, and personality.33 The APT Test also included 502 questions from the MMPI, and the brothers were asked to respond true or false to such prompts as “I see things or animals or people around me that others do not see”; “I commonly hear voices without knowing where they are coming from”; “At times I have fits of laughing and crying that I cannot control”; “My soul sometimes leaves my body”; “At one or more times in my life I felt that someone was making me do things by hypnotizing me”; and “I have a habit of counting things that are not important such as bulbs on electric signs, and so forth.”34 After all three brothers failed to score satisfactorily on the APT Test, they filed a class action lawsuit against RAC on behalf of other employees at 106 RAC stores, claiming that the store’s APT Test constituted a violation of the ADA’s prohibition of pre-offer medical examinations.35

The Seventh Circuit began its analysis by noting that Congress has explicitly limited “the ability of employers to use ‘medical examinations and inquiries’” in three provisions, namely “a prohibition against using pre-employment medical tests; a prohibition against the use of medical tests that lack job-relatedness and business necessity; and a prohibition against the use of tests which screen out (or tend to screen out) people with disabilities.”36 The court then looked to seven EEOC guidelines37 on what counts as a medical examination, holding that whereas the presence of only one of those factors may be enough to make a test prohibited under the ADA,38 the absence of one or more factors will not determinatively demonstrate that the test is not a medical examination.39 Instead, the key inquiry is whether the test in question is “designed to reveal a mental impairment.”40

Applying the new test to the facts in Karraker, the court held that regardless of whether RAC actually used the test to weed out individuals with certain disorders, the “use of the MMPI likely had the effect of excluding employees with disorders from promotions.”41 Since the APT Test incorporated many questions from the MMPI, and the MMPI was designed to reveal mental illness, the APT Test had the effect of hurting the employment prospects individuals with a mental disability.42 In other words, the MMPI and other tests that are based on the MMPI are properly considered a medical examination under the ADA, and employers may not use them in the pre-offer stage of the hiring process.43


With a mobile workforce and increasing reliance on online application processes, modern employers are often faced with the prospect of hiring applicants about whom they know very little. The applicant’s previous employers are increasingly unlikely to provide references of any real use, and in fact are likely to produce no reference at all.44 In light of this trend it is easy to see why employers are attracted to the prospect of personality testing. Particularly in an increasingly service sector-based economy, employers are loathe to present the public with sales staff who have some traits or conditions incompatible with good customer service.

Fortunately for employers, the ADA’s prohibition of pre-offer medical examinations does not take personality and psychological screening completely off the table. It merely requires that, in addition to some showing of job relatedness and business necessity, such screening come after a job offer is made. The ADA even allows the employer to condition the job offer upon successful completion of the examination. In short, the regulations allow for an appropriate balance of the ADA’s goal of preventing applicants from being screened out from the start based on a medical examination that exposes the applicant’s disability and the employer’s need to hire a suitable workforce.

Decisions like Miller distort this balance by blurring the boundaries of the ADA’s pre-offer and post-offer examination regulations. In holding the MMPI a prohibited pre-offer medical examination under the ADA, the Seventh Circuit approach in Karraker recognizes the proper distinction between pre-offer and post-offer testing. The Karraker test offers a practical method for determining whether a test violates the ADA by focusing on whether the test was designed to reveal mental impairments or whether it has the effect of excluding applicants from hire or promotion based on mental disorders. To avoid potential liability for violating the ADA, employers should keep the Karraker test in mind when choosing pre-offer personality screens and, at a minimum, avoid tests that incorporate sections of the MMPI and other examinations designed to detect mental disorders. Given the uncertainty as to whether other circuits will adopt the broad standing requirements and medical examination test announced in Karraker or follow the rigid standing guidelines and substitution of post-offer rules for pre-offer tests found in Miller, employers hiring in multiple jurisdictions or that feature the personality screen as part of an online application should be particularly careful in choosing which tests to use.

1 Jennifer Gonzales-Frisbie, Comment, Personality Tests in Jeopardy: An Evaluation of the Seventh Circuit’s Decision in Karraker v. Rent-A-Center and its Impact on the Future Use of Personality Tests in Pre-Employment Screening, 9 U. Pa. J. Lab. & Emp. L. 185, 190 (Fall 2006).
2 Larry R. Seegull and Emily J. Caputo, When a Test Turns into a Trial: Things to Keep in Mind about Psychological Testing, 15 Bus. L. Today 13 (January/February 2006).
3 See, e.g.,, FAQs (last visited Mar. 18, 2008)(explaining that “[testing remote applicants is] the beauty of online testing. You can have a candidate located anywhere in the world with Internet access take the test and the results will come directly to you.”)
4 See, e.g., L. Camille Hebert, American with Disabilities Act of 1990, 1 Empl. Privacy Law § 7:16 (2007) (noting the split among circuits as to whether a person must be an individual with a qualifying disability to challenge pre-offer employment screening through medical examinations, and finding that whereas the 6th Circuit in Bone v. Louisville, 215 F.3d 1325 (2000) held that an individual must be disabled under the ADA to bring a claim against employer testing under 42 U.S.C.A. § 12112(d)(2), the 8th, 9th, and 10th Circuits have rejected this conclusion, and would allow an individual to challenge a pre-offer medical examination under the statute regardless of whether such individual had a qualifying disability).
5 42 U.S.C. § 12112(d).
6 42 U.S.C. § 12101(b).
7 42 U.S.C. § 12102(d)(2).
8 42 U.S.C. § 12112(d).
9 42 U.S.C. § 12112(d)(2)(A).
10 42 U.S.C. § 12112(d)(2)(B).
11 42 U.S.C. § 12112(d)(3). Emphasis not in original.
12 42 U.S.C. § 12112(d)(3)(A).
13 42 U.S.C. § 12112(d)(3)(B).
14 42 U.S.C. § 12112(d)(3)(C)-(4)(A).
15 42 U.S.C. § 12112(d).
16 Miller v. City of Springfield, 146 F.3d 612 (8th Cir. 1998). Available publicly at
17 Id.
18 Id.
19 Id.
20 Id.
21 Id.
22 Id. at 615 (citing 29 C.F.R. § 1630.14(b)(3) available publicly at
23 Miller, at 615.
24 Id.
25 42 U.S.C. § 12112(d)(3). Emphasis not in the original.
26 42 U.S.C. § 12112(d)(2)(A).
27 Barnes v. Cochran, 944 F. Supp 897 (S.D. Fla. 1996).
28 Id.
29 Id., at FN 3, (citing Stacy J. Bagley, Enough is Enough! Congress and the Courts React to Employers’ Medical Screening and Surveillance Procedures, 99 Dick. L. Rev. 723, 730-31 (1995)).
30 Karraker v. Rent-A-Center, 411 F.3d 831 (7th Cir. 2005). Available publicly at
31 Even though this case concerned promotion, rather than an initial hiring decision, the court analyzed the case under the ADA’s pre-offer regulations because the applicants were seeking new positions within the company. Both parties agreed to this framework. Karraker, at 835.
32 Karraker, at 833.
33 Id.
34 Id., at 834.
35 Id.
36 Id.
37 “1) whether the test is administered by a health care professional; 2) whether the test is interpreted by a health care professional; 3) whether the test is designed to reveal an impairment of physical or mental health; 4) whether the test is invasive; 5) whether the test measures an employee’s performance of a task or measures his/her physiological responses to performing the task; 6) whether the test would normally be administered in a medical setting; and 7) whether medical equipment is used.” Id., at 835.
38 Id.
39 Id., at 836.
40 Id., at 835.
41 Id.
42 Id.
43 For an article opposing this design and effect test as too broad, see Scott Kramer, Why is the Company Asking About my Fear of Spiders? A New Look at Evaluating Whether an Employer-Provided Personality Test Constitutes A Medical Examination Under the ADA, 2007 U. Ill. L. Rev. 1279 (2007) available publicly at (arguing that the Karraker test is likely to be too restrictive on employer’s interest in screening out applicants based on tastes, habits and personality and suggesting that the test should be replaced by the author’s Medical Field Test, arguing that only tests used in the medical community are medical examinations under the ADA).
44 Susan J. Stabile, The Use of Personality Tests as a Hiring Tool: Is the Benefit Worth the Cost?, 4 U. Pa. J. Lab. & Emp. L. 279, 283 (Winter 2002).

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March 19th, 2008 at 9:11 am

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Big Ten Network Reaches a Big Impasse

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by: Colin J. McIntyre, Associate Editor, MTTLR


In June of 2006, the Big Ten Conference announced its agreement with the Big Ten Network (“BTN”), in which the network paid for the rights to air a variety of Big Ten events and made a commitment to promote Big Ten sports of all kinds.1 Since that announcement, Big Ten sports fans have been watching anxiously as BTN has struggled through negotiations for carriage by the largest cable operators – Comcast most specifically. These negotiations will determine whether millions of cable subscribers will be able to watch many Big Ten games and how much they’ll pay. A critical point of contention has been whether the network will be carried as part of the extended basic cable package or whether it will be incorporated into a premium sports tier package.2 Prior to the network’s debut on August 31, 2007, it claimed to have reached agreements with over 75 small cable providers, as well as satellite providers DirecTV and AT&T U-verse.3 The number of agreements reached by BTN with cable providers rose to 140 by mid-October, but BTN and Comcast were still unable to reach an agreement.4 The parties appear to have made little headway in subsequent negotiations, although both sides continue to proclaim progress.5 As Big Ten sports fans have grown frustrated at being unable to watch games previously available on their basic extended cable services, the Big Ten Network and Comcast have done their best to address viewers’ concerns – by pointing fingers.6

The Dispute

The core issues have been whether there is enough interest among cable subscribers to justify adding the Big Ten Network to the basic extended package and whether the subscribers would be willing to pay any additional costs. Comcast has characterized the Big Ten Network’s coverage as the games no other networks wanted – the leftovers.7 BTN counters that although the Big Ten’s agreements do grant first choice of games to ESPN and ABC,8 it is still getting a valuable slice of the pie containing some important games that can hardly be deemed unwanted.9 The parties have presented conflicting claims of BTN popularity and viewership.10

Agreements between program networks and cable operators typically involve a per-subscriber fee paid by the cable operator.11 Comcast claims that the fee proposed by BTN is unreasonably high and would have to be transmitted to the subscriber. This increased cost imposed on subscribers not interested in receiving BTN amounts to a “Big Ten Tax” in the amount of $13.20 annually, according to Comcast.12 In BTN’s corner, commentators fire back that Comcast would not only force subscribers interested in BTN to pay for digital cable, but also to pay more than $70 annually for the premium sports package.13 While some might consider the $13 “Big Ten Tax” less-than-Comcastic, others would consider this $70 “Premium Sports Package Tax” to be downright Comrageous.

Comcast has done well to present itself as a sensitive protector of downtrodden consumers, upholding fairness by refusing to force subscribers to pay for the allegedly unwanted BTN. However, Comcast appears to contend that placing BTN in the Sports Entertainment Packages is the most fair way to make it available, though it would force BTN desirers to pay for five additional, potentially unwanted channels.14 One commenter suggests that Comcast’s current position makes one wonder about its previous opposition to a la carte programming.15 Comcast previously submitted comments to the FCC,16 which generally indicate a basis for opposing a la carte programming requirements similar to that found in the Booz-Alan-Hamilton study.17 However, with the FCC’s 2006 report questioning the validity of the Booz-Alan-Hamilton study and finding a la carte programming to favor consumers,18 perhaps we will see Comcast revisiting its position as well.

The Actual Reasons

The big question in the standoff between BTN and Comcast is how they can afford not to reach an agreement. BTN has already stated that it was expecting tens of millions of dollars in revenue from broad viewership,19 yet it has already had to bite the bullet for football season and is now well into basketball season. BTN President Mark Silverman claims that BTN cannot survive on a premium sports tier,20 but presumably it is also pretty hard up not being carried by the big cable companies at all. Though accusations of misinformation and mischaracterization have flown back and forth throughout the past several months,21 BTN makes a couple claims that seem convincing. First, it claims that it is willing to negotiate and looking to make a deal and cites the numerous agreements it has reached with other providers.22 Comcast, on the other hand, seems to have remained firm in its insistence on placing BTN in the sports tier.23 Silverman then provides reasonable explanation for declining to allow BTN to appear in a sports package. So what are the incentives for each party to participate in this stalemate?

According to Silverman, placement on the sports tier would mean dramatically reduced viewership,24 to the tune of 96% less revenue than anticipated.25 Although BTN has indicated a willingness to be flexible based on the volume of business brought in by Comcast,26 96% might be larger than the bulk discount BTN had in mind. BTN has also announced its goal of broad distribution, presumably broader than the 4% of Comcast subscribers who currently receive the sports tier.27 Finally, BTN indicates that all regional sports networks with local appeal similar to BTN are carried on basic extended packages, including the 11 RSNs owned by Comcast.28

Comcast’s incentives for sticking by its guns are interesting. Is the six-time runner-up for the title of “Lowest Customer Satisfaction Score” in the cable and satellite industry counting on the goodwill and loyalty of customers to help it weather this storm?29 Or is it true that BTN’s offerings are the day-old casserole of cable programming? Is David Cohen’s reasoning correct when he suggests that the BTN campaign is having little impact on Comcast subscription rates because nobody cares about BTN?30 Commenters have suggested in the past that significant barriers exist to switching from cable to satellite television.31 Besides the normal logistical hassle,32 technological limitations may make satellite unavailable, landlord approval of dish installation may be an impediment,33 and the bundled offering of cable television and broadband services may deter would-be satellite subscribers,34 especially where equivalent broadband service is unavailable35. Cohen’s suggestion seems conclusory, at best. It seems possible that Comcast hopes to enhance its sports tier to collect the larger subscription fees, confident that it can outwait BTN.36 As concerned voices continue to decry the growth of big cable,37 the BTN-Comcast negotiations may be another indication that Comcast’s power may be a little out of hand.38


While the specific details about negotiations remain unclear, a review of the available details allows at least general impressions. As a dedicated Big Ten sports non-fan, I am admittedly not riled that some games are now only available on BTN. However, I find it striking how each side has conducted itself. Comcast’s’ behavior seems equivalent to spreading rumors,39 pouting,40 and taking one’s ball and going home.41 In contrast, the BTN campaign has taken a largely positive or responsive approach.42 On the merits of their positions, each party certainly has a financial interest, and it is difficult to totally resolve the issue without more information about the specific negotiations. BTN has appeared more straight-forward in the statements it has made, though, while Comcast officials and the anti-BTN campaign have seemed evasive and sneaky.43 The continued stalemate in negotiations and the circumstances surrounding the negotiations suggest that Comcast may be using its market power to act as a bully.

1 See General Releases,, The Big Ten Conference Announces Media Agreements Increasing National Coverage of Big Ten Sports, Jun. 21, 2006.

2 See Eric Lacy, Big Ten, cable outlets at impasse, Detroit News, Aug. 24, 2007, at 1D (“What’s not negotiable . . . is the [Big Ten N]etworks stance on having the channel on basic cable.”); Richard Sandomir, Not Everyone Wants Channel That’s All Big Ten, All the Time, N.Y. Times, June 18, 2007, at D5 (“the offer to place the network on the sports tier was not an opening gambit or a negotiating ply.”).

3, Frequently Asked Questions, (indicating that reaching an agreement with Comcast “in the near future” was unlikely) (last updated Dec. 7, 2007) (last visited February 6, 2008).

4 Bob Fernandez, Comcast Holds the Line on Big Ten, Phila. Inquirer, Oct. 10, 2007, at A01. See also Ed Sherman, Comcast vs. BTN spins out of control, Chi Trib., October 10, 2007, at C4 (“Silverman said there has been ‘no movement’ in BTN’s negotiations with Comcast”); Interview by Sam Webb with Mark Silverman, President, BTN, (Oct. 3, 2007) (“…there is only so much we can do when the other party is not really interested [in negotiating]”).

5 See, e.g., Michael Zuidema, Big Ten Network Standoff Drags On, Grand Rapids Press, Feb. 22, 2008; Ed Sherman, Big Ten Network, Comcast Continue Battle, Chicago Tribune, Feb. 8, 2008. See also BigTen Network, Cable Having ‘Meaningful Talks,, Feb. 26, 2008

6 See, e.g., Myth vs. Fact, (last visited Feb. 6, 2008);, (last visited Feb. 6, 2008) (anti-BTN website funded by Comcast, according to Mark Snyder, Good Luck Finding Today’s U-M Game on TV; Fans Are Biggest Victims of BTN-Comcast Feud, Detroit Free Press, Sept. 1, 2007, at Sports page 1). See also Sherman supra note 5.

7 See Fernandez, supra note 4; Sherman supra note 5.

8, Big Ten Network Frequently Asked Questions, (last visited Feb. 6, 2008)

9 See Webb, supra note 5; Myth vs. Fact, supra note 6.

10 See supra note 6; Interview by Sam Webb with Patrick Paterno, Director of Communications, Comcast Midwest, (Oct. 3, 2007); Chip Scoggins & Judd Zulgad, U Caught up in Comcast-Big Ten Feud, Star Trib., August 28, 2008 at 8C.

11 See Comments of Comcast Corporation, MB Docket No. 04-207 at 18 (filed July 15, 2004) (“Comcast Comments”).

12 See Teddy Greenstein, Big Ten, Comcast in “Taxing” Fight, Chi Trib., June 22, 2007, at C2; Scoggins supra note 10.

13 See Ed Sherman, Comcast Adding Costs, Not Choices, Chi Trib., Oct. 31, 2007, at C2 (indicating $5.99 per month fee to digital subscribers for sports tier); Fernandez supra note 4. See also supra note 6 (claiming basic non-digital Comcast subscribers could have to pay up to $280 annually to receive BTN on the sports tier).

14, Sports Entertainment Package Features, (last visited Feb 6, 2008) (listing CSTV, Fox Soccer, Fox College, NBA TV and NFL Network as the channels in the package).

15 Fernandez supra note 4; Webb supra note 10.

16 See Comcast Comments supra note 11.

17 Booz Allen Hamilton, The a la Carte Paradox: Higher Consumer Costs and Reduced Programming Diversity: An Economic Analysis of the Implications of a la Carte Pricing on Cable Customers (July 2004) (“Booz-Allen-Hamilton Study”).

18 Federal Communications Commission, Media Bureau, Further Report On the Packaging and Sale of Video Programming Services To the Public, Feb. 9, 2006.

19 Fernandez supra note 4.

20 Id.

21 See, e.g., Sherman supra note 5 (Silverman claiming Comcast ad was “mischaracterizing the facts”); Richard Sandomir, Tempers Flare Over Network For Big Ten, N.Y. Times, June 23, 2007, at D5 (referring to a letter from Comcast executive vice president, David Cohen calling statements by Big Ten commissioner, Jim Delany “mischaracterizations and overstatements”); Webb supra note 5 (presenting Silverman questioning Comcast’s decision “go in a full scale advertising attack on the network with lies that they know are inaccurate.”)

22 See supra note 6 (referencing 150 agreements reached as indication of flexibility); Webb supra note 5 (Silverman indicating that BTN is “getting deals done” and is flexible).

23 See, e.g., Fernandez supra note 4.

24 See id. For several compelling arguments against forcing channels onto themed tiers, see Comcast Comments supra note 11 at 15-33 (arguing that a la cart and themed tier programming significantly reduces viewership and network revenues, which dramatically increases costs to consumers).

25 ($60 M – $2.5 M) / $ 60 M = 96%. Fernandez supra note 4 (indicating expectation of $60M and potential for $2.5M on a sports tier).

26 BTN suggested that due to its size, Comcast would likely pay less than a dollar per subscriber, rather than the $1.10 figure that has been spread around. Id.

27 Id.

28 supra note 3.

29 American Consumer Satisfaction Index, Scores By Industry: Cable and Satellite TV, (last visited Feb. 6, 2008) (listing consumer satisfaction ratings from 2001-2007 for seven major companies). Looking beyond the cable and satellite industry, of the 156 companies receiving scores in 2007, Comcast received the second lowest, tying with United Airlines and losing out only to Charter Communications. American Consumer Satisfaction Index, Scores by Company, (last visited Feb. 6, 2008)

30 See Fernandez supra note 4 (quoting Cohen saying “”We are seeing, essentially, no impact from that campaign. The market is proving that they are overreaching.”).

31 See Comments of Citizen Commenters, MM Docket No. 92-264 at 40-43 (filed 08/05/2005)(explaining costs of switching from cable to DBS) (“Comments of Citizen Commenters”).

32 Id. at 41.

33 Clear exposure to the southern sky is necessary. Id. at 41.

34 See id. at 42-43; Christopher Stern, Comcast Bundles TV, Internet to Keep Customers, Wash. Post, Mar. 26, 2003, at E01.

35 For an example of Comcast reveling in the inferiority of its broadband competition, see (last visited Feb. 6, 2008)

36 This idea has been advanced more than once. See Sherman supra note 13; supra note 3 (indicating that Comcast could earn up to $280 annually for each non-digital subscriber that signs up for the sports tier).

37 See, e.g., Jay Halfon & Edmund Mierzwinski, U.S. Public Interest Research Group, The Failure of Cable Deregulation, (2003) (“US PIRG Report”); Comments of Citizen Commenters; Letter from Harold Feld and Andrew Jay Schwartzman, Vice President and President, Media Access Project, on behalf of Common Cause et al., to Kevin Martin, Chairman, FCC (Mar. 21, 2007) (supporting implementation of ownership limitations on cable operators) (“Common Cause Letter”); Harold Feld’s Tales of the Sausage Factory, (Jul. 31, 2005, 13:51 EST) (“Fighting Big Cable (and why it matters)”).

38 See, e.g., US PIRG Report; study; Common Cause Letter supra note 37.

39 See Putting Fans First Commercial, (last visited Feb. 6, 2008); supra note 6.

40 See supra note 6.

41 See Scoggins supra note 10 (reporting Comcast’s withdrawal of sponsorship of a luncheon hosted by the St. Paul Chamber of Commerce and the University of Minnesota, as a result of the university’s Big Ten membership).

42 See, e.g., Big Ten Network Commercials, (last visited Feb 6, 2008) (showing BTN commercials lauding the positive impact of BTN and the importance of the Big Ten to the community); supra note 6 (responding to Comcast’s statements in a myth vs. fact page).

43 Compare Webb supra note 5 (interviewing BTN President, Mark Silverman) and supra note 6 with Webb supra note 10 (interviewing Comcast Midwest Vice President, Patrick Paterno) and supra note 6.

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February 29th, 2008 at 1:21 pm

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