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ACLU Urges High Court to Uphold Free Speech Ruling

The Court announced this morning that it will hear an appeal of a lower court ruling in FCC v. Fox Television Stations, et al. that found the FCC failed to provide adequate justification for its regulations governing the broadcast of "fleeting expletives." The Department of Justice is appealing that decision on behalf of the Federal Communications Commission (FCC).

Contrary to its practice over the last several decades, the FCC recently began leveraging large fines against broadcasting companies for use of even isolated profanities aired on their stations. Last summer, Fox Broadcasting Company asked the U.S. Court of Appeals for the Second Circuit to reverse two such indecency findings against the company, arguing that the FCC had not historically fined broadcasters for fleeting expletives on live television. The circuit court agreed, ruling that the FCC's enforcement of indecency findings were "arbitrary and capricious," and ordered the FCC to provide better justification for its new policy. The Justice Department appealed that ruling to the Supreme Court.

The following can be attributed to Caroline Fredrickson, Director of the Washington Legislative Office of the ACLU:

"The FCC's new policy of policing television broadcasts with a vengeance doesn't survive First Amendment scrutiny. Giving the Commission the ability to leverage arbitrary fines based on a vague set of standards will have a chilling effect on free speech, because broadcasters trying to avoid the penalties will err on the side of caution and begin censoring content that wouldn't actually be considered indecent.

"The government should let parents do the parenting. Parents have access to all the tools they need to manage what their children see and hear, from channel blocking to language filters and don't need the FCC looking over their shoulder/second-guessing their decisions. The Second Circuit was right that the FCC has overstepped its bounds and, in fact, the Constitution, and we believe the Supreme Court should uphold that decision."

Congress is also considering a fleeting expletives bill, which the ACLU has called unwise, unnecessary, and unconstitutional. The bill would reinstate the Federal Communications Commission's (FCC) ability to prohibit the use of any profanity from 6 a.m. to 10 p.m. on broadcast television.

Blu-ray's HD-Format Victory Could Be Short

The high-definition DVD format war has been officially over since mid-February, when HD-DVD backer Toshiba threw in the towel. While studios and hardware manufacturers are adapting to the triumphant Blu-ray format, its victory could be short.

Microsoft has moved into the acceptance phase with a recent acknowledgment by CEO Steve Ballmer that its Windows operating system will support Blu-ray. The software giant said last month that it would stop manufacturing HD-DVD players for its Xbox 360. But Ballmer also told reporters that he considers a high-definition format a transitional medium, because eventually more high-definition content will be delivered over the Internet than by discs. In addition, for a Blu-ray victory to endure, prices for players need to fall. Last week Sony Electronics President Stan Glasgow said prices for Blu-ray players would drop slowly. Sony's players are now upwards of $400, but Glasgow predicted prices under $300 by Christmas and under $200 by the end of next year. Other Blu-ray player manufacturers, such as Sharp and Samsung, are also expected to lower prices.

But Glasgow told The New York Times that the Blu-ray Association would try to avoid the extremely low prices that hit DVD players by not licensing the standard to Chinese manufacturers. He indicated there will be made-in-China players, but not soon.

As for the discs themselves, prices are beginning to fall. Amazon and other retailers are reportedly pricing some Blu-ray movies under $15. Some observers are predicting Blu-ray discs below $10 within a few months. But the big question is whether consumers will buy the format. Paul Jackson, an analyst with industry research firm Forrester, said numbers are not yet out, although he added that anecdotal reports indicate consumers are beginning to move toward Blu-ray.

Yankee Group's Josh Martin noted that about 35 to 40 percent of American households have high-definition TVs, a significant rate of adoption but smaller than the installed base for DVD. The comparison to DVD adoption is inevitable, although both analysts point to other differences. Jackson noted that the existence of enhanced DVDs and TV sets means that, for some consumers, there isn't the same need to upgrade as there was when consumers went from VHS to DVD.

Jackson agreed that the future for high-definition content is delivery by high-speed Internet, but he added that a super-high-definition format may emerge before discs decline as a distribution medium. Martin said regular DVDs will remain as a format for some time, since its installed base is so large. He also predicted there might be a super format, perhaps using holographic technology.

But he added that it would be best for the industry if any new format doesn't arrive for at least five, maybe 10, years because of "consumer exhaustion."

Toshiba Acknowledges Defeat As Blu-ray Wins Format Battle

The biggest consumer electronic format war in a generation is officially over. Toshiba, the Japanese electronics giant, threw in the towel on its HD DVD technology Tuesday, announcing that it would no longer develop, produce or market disc players for the format. In doing so, it ceded victory to Sony's competing Blu-ray format, which now looks set to become the global standard for high-definition DVDs.

In a pitched two-year battle, Sony and Toshiba tried to woo Hollywood studios to release movies in their formats and to persuade computer and game console makers to use their disc drives. The struggle was reminiscent of the 1980s battle between the VHS format of Matsushita and Betamax from Sony to become the standard for videotape.

Toshiba's chief executive, Atsutoshi Nishida, said the death blow for HD DVD came last month, when the movie studio Warner Brothers, a unit of Time Warner, decided to drop the format in favor of Blu-ray. He also cited a decision last week by Wal-Mart Stores not to stock discs and players using the Toshiba format.

''The sudden change by Warner Brothers was like a bolt from the blue,'' Mr. Nishida said at a news conference at Toshiba's headquarters in Tokyo.

He said Toshiba had already informed two of its biggest HD DVD partners, the studios Universal and Paramount, of its decision. Other partners included Intel and Microsoft, which sold HD DVD drives for its Xbox 360 game consoles. Mr. Nishida said Toshiba would halt all production by the end of March, though it would continue offering customer support. He also said Toshiba had no plans to begin producing Blu-ray players.

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