Month: January 2010

Bye Bye Coco

And so last night was the last Conan O’Brien Tonight Show.  I have been watching this week – it was Conan’s best week ever.  He let loose and did real comedy.  His guests were free-wheeling and able to say almost anything.  Conan packed his show full of comedy.  And what happened? His ratings went up.  To the highest levels ever.  Sure the news gets people to tune in, but programming gets them to stay.  So in his final week, he showed the network what they will miss, and it was, unfortunately, what he should have been doing all along.  But the show was good.  Conan had still not developed into the top-flight host that Jay and David are – Conan STILL interrupted his guests (here’s a hint Conan: When you have Tom Hanks on, he is funnier than you are and your audience wants to hear him – just let Tom Hanks talk! Don’t interrupt him!) Even with Conan-interruptus, it was one of the best segments all week.

So is putting Jay back on the Tonight Show the right thing for NBC?  This is just a long-time television observer’s opinion, but Jay has done damage to himself.  Can he win the late-night ratings? Maybe.  But it won’t be like it used to be with Fortress Jay dominating late-night.  People have had a chance to tune around and see what else is available and the young, hip comedians are creative and interesting.  Jimmy Fallon is showing his range (he can even sing a bit) as an entertainer. Craig Ferguson (a bit older, but still new to the scene) is showing that he is a terrific interviewer. Chelsea Handler is a stealth but powerful force.  Jay now needs to look over his shoulder.  As of today, Jay is the definition of old-school.

Good luck to Conan on his future career moves.  Good luck to Jay.  Now that the battle is over, it is time for this viewer to surf the channels and find something interesting to watch in late night.

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The FCC and “The Future of Media”

The FCC (www.fcc.gov) has started a proceeding examining “the future of media.” The public notice lists 42 questions covering everything from the state of journalism to traditional radio and television to the Internet.  The FCC welcomes is requesting comments and they have started a new website at http://www.fcc.gov/futureofmedia.

For more information on cameras in the courtroom, read our book chapter on “Court TV”

I worked with my colleague Chuck Kleinhans at Northwestern University on a media study of the cable channel “Court TV.”  While the current channel “TruTV” has roots in Court TV, they are really nothing alike.  Court TV was owned by a lawyer and went courtroom-by-courtroom across the country fighting for access for cameras to the courtroom.  They learned how to “do it right” in the broadcast of court proceedings – no easy feat.  You don’t want to just dump any set of technologists into a courtroom and expect everything to be alright.  Judges became experienced in how to handle cameras.  The legacy of their early successes remain in most states today.

Chuck and I watched Court TV for ten years to do our study.  It is humanities-oriented (ie not quantitative) and a fun read. Court TV provided live gavel-to-gavel coverage of fascinating cases from divorces to small claims court.  It provided post-trial interpretation by experts and in the early years, it even had continuing-education programs for lawyers.  Court TV was not able to sustain sufficient ratings and transformed into the popular-cime-drama/docu genre that it is now.

Here is the citation: Chuck Kleinhans and Rick Morris, “Court TV: The Evolution of a Reality Format,” Startling! Heartbreaking!Real! Reality TV and the Remaking of Television Culture, Laurie Ouellette and Sue Murray, eds., (New York: NYU Press, 2004), 157-175  Note that this is the FIRST  edition of the book.  Laurie and Sue went on to do a second edition and Court TV had transformed into TruTV by then so our chapter did not make it through to the second edition.

Proposition 8, real-time streaming, and the US Supreme Court

When I heard that the US Supreme Court had ruled against real-time streaming of the Proposition 8 trial in California, my first reaction was “what are they thinking, this is a new century, shouldn’t we finally be able to see important cases on television and shouldn’t the people have access to the courts?  But I was so wrong in this case.  After I read the actual text of the case, a person like me who backs cameras in the courtroom in most cases, thinks that the USSC made the right decision.

By the way, in case you are not following the issue: Proposition 8 is the California provision that voted to overturn same-sex marriage in California.  Certainly a lot of people on both sides of the issue are interested in it, and I presume would be interested in watching the trial proceedings.

The US Supreme court case is  Hollingsworth v. Perry, 558 U.S. _____ (2010).

“Cameras in the courtroom” has always had the attention of the public, the news media, and the academic community for years.  Wouldn’t cameras in the courtroom create a more informed and engaged public? Wouldn’t there be greater learning about the judicial process? Wouldn’t it be nice if the press and the public had more opportunities to see when the judicial system does not function optimally? Although virtually all court proceedings are open to the public who want to attend in person, it is not easy to either attend nor discuss what happened and cameras in courts make both easier.

Many states permit cameras in the courtroom and the USSC does have audiotapes of its arguments available (the famous Oyez project at Northwesten University helps make those tapes available).  But federal courts have been resistant to cameras in the courtroom for trials.

Why? Perhaps the O.J. Simpson trial.  What could have been a breakthrough for cameras in the courtroom created a lot of concern within the legal community and among the public.  Every side and position can find something to be concerned about cameras in the courtroom after that trial.

So why do I think the USSC is correct in its ruling in Hollingsworth?  The subject matter has no sway in my opinion,  I am a reasonably liberal professor-type. But my concern, and the Court’s concern, goes mainly to the process.  The 9th Circuit and its trial court attempted to change its rule basically a the last minute (in December for a January trial, although discussions of televising this trial started a couple of months earlier) and without public comment.  If there is anything that even today in 2010 that is frought with issues and deserves due consideration, it is cameras in the courtroom. Instead, in this case the 9th Circuit and its trial court tried to rush through rules without what the Court found to be enough consideration.

In particular, I can see questions of when witnesses should not be televised (rape victims/witnesses?), or when entire trials should not be televised. Also, rules need to be established in the 9th circuit on lots of operational issues like what cameras can look at (juror’s faces?) and there is a whole host of other questions.  The USSC notes that in this case same-sex couples will be testifying, and that some parties have already received what appears to be threats of violence against them.   Both types of parties, among others might not want their testimony televised.  There needs to be a full procedure for considering those issues before the court moves into the arena of cameras in the trial courtroom.  And moments before a major case does not seem to be the right time.

No doubt that the 9th Circuit has been considering cameras in the courtroom for a long time.  But the record before the USSC gave them pause that this is not the moment.  Note that the majority opinion is written “per curium” but that the dissent is signed by four justices (Breyer, Stevens, Ginsberg, and Sotomayor).  That presumably makes this a 5-4 decision.  The Supreme Court could not be more split.

The federal courts need to get moving with permitting cameras in the trial courts.  They need to adopt their rules after public comment and the judges need to get experience with interpretation of the rules and how to best respond to requests of the parties for protection.  And the court staff needs to have practice on how to handle the real-time exigencies of broadcasting.  It is hard enough to know what to do when broadcasting a live awards show, and unlike cameras in the courtroom, no one will receive the death sentence after the show is over.  The stakes are high, but our judicial system and our democracy is the best in the world.  And cameras in the courtroom have the promise to make both stronger.

Conan and the end of the road at NBC

It seems as if Conan has made his “personal choice” (see my blog entry below) and will not host a 12:05AM Tonight Show.  And all there is left for him to do is work out an exit strategy.  One blog reports that Conan was owed $60 million if he could not host the Tonight Show.  He will probably settle for much less and he will need to get a release from the network for a reasonable time for him to start a competing show.  There is no doubt that Conan has competing offers.  Other sources also report that Conan is working out some help for his staffers who moved to LA with him just a few months ago.  In this economy, they do need some protection from becoming part of the huge amount of collateral damage.  Imagine trying to sell a house you bought 7 months ago or getting a new job as a comedy-show staffer in this environment?  Jay already has a staff and a studio.

So what went wrong?  This observer believes that both Jay and Conan are responsible for their own ratings failures.  Let’s start with Jay.  Jay tried to take his version of the “Tonight Show” and move it to primetime with a little more flash.  Who is he kidding?  Any student of television (except perhaps the brass of NBC?) knows that the homes using television are much higher in primetime and that the audience is different.  Carrying over the same show is a recipe for failure.  While some of the new bits were charming (the Dan Band) more often than not the new segments were pace killers.  The “earn your plug” segment stopped the show in its tracks and were not amusing, they were almost like watching an old Gong Show segment, except the poor celebrity clearly was not having as much fun as a Gong Show contestant.  And the electric car segment was cute a time or two, but it was also so clearly a show-stopper that when Arnold Schwartzenegger was on, they just had him blow up the car al la the Terminator.  This observer thinks that the old Johnny Carson show would have appealed to a broader audience and had higher ratings in primetime.  Johnny Carson had something for everyone; he was almost a variety show  – depending on the night, he did some monologue, brought out a guest, brought out an animal act, brought out a comedian (notice Jay rarely had on a “competing comedian telling jokes), and ended with a big musical act.  Even if that is not the tastes of the audience in 2010, it is an example of a much broader-appealing show that if reconceived in 2010 might be broad enough to attract more of the pre-news audience.

And what about Conan’s Tonight Show? Same exact issue, he tried to move from a place where he had an audience that loved him to a new place without changing the show.  Dick Ebersol, a legend himself in late night (Saturday Night Live) stated in an inerview in the New York Times that he tried to get Conan to broaden his show’s appeal ( http://www.nytimes.com/2010/01/15/business/media/15conan.html).  although Mr. Ebersol defends Jay, my opinion is that Jay committed the same sin.  The ratings of both shows tell the same story.  Audience appeal is measurable by the ratings every day in timeparts of 15 minutes or less (so a show can tell if a single segment isn’t working!) and neither show could find the right mix to bring in the audience.

And what were the NBC brass thinking? The last time there was a host change on the Tonight Show (Carson to Leno) it took over a year before it found its audience with the famous Hugh Grant interview that finally pulled it ahead of Letterman in the ratings.  From this perch in middle-America, it appears as if they did not have plans for how to make the long-haul to success.  NBC took years to build up its primetime success in the 1980’s and 1990’s and years to lose it; if there is any organization that should, in theory, understand long-term audience development, it should be ?NBC.

What next for Conan? Both Jay Leno and David Letterman are absolute masters of the late-night format.  They are both are superb comedians.  If Conan tries to compete directly with a re-engineered Jay-vs-David late-night landscape, it will be a difficult road for him.  Just my opinion.

Comcast v. FCC, net neutrality, and homework

In Comcast v FCC, the FCC is attempting to sanction Comcast for interfering with internet services – and interfering with internet services is against the principles of “net neutrality.”  However, Comcast is defending on what this author believes is a very effective ground – that the FCC does not have authority to regulate net neutrality.

The FCC is given its authority by the Communications Act of 1934, as amended many, may times over the years including by the Telecommunications Act of 1996.  The problem for the FCC in this case is that the Communications Act has not been amended to empower the FCC to address net neutrality.  The FCC normally needs explicit jurisdiction, granted by Congress and the President, in order to regulate communication subjects.

Of course there are some exceptions.  For example, when the subject is “reasonably ancillary” to a subject that the FCC has explicit authority over, the courts have held that regulation is OK.  Even so, the FCC can go too far in that regulation.  The reasonably ancillary doctrine was applied to cable television cases.  US v. Southwestern Cable 392 US 197 (1968).  However, the FCC went too far in its “ancillary regulation,” and the courts rejected additional regulation in FCC v. Midwest Video. The jurisdiction of the FCC over cable television was eventually cleared up in the Cable Communications Policy Act of 1984.

So which will it be in this case? The appeals court has yet to rule.  So this is an instance where FCC regulation is not certain.  In cases where the FCC overreaches, or where the FCC does not “do its homework,” the courts are not afraid to overturn the FCC’s rules.

Conan, contracts, and character

Conan has taken an interesting approach to the late-night fiasco – refusing to be on a “Tonight Show” that airs after midnight and follows a half-hour of a Jay Leno Show.  In late-night, the Tonight Show has always been the gold standard.  It was the show all comedians aspired to.  It was a show that during the Carson years launched or helped most of the new comics get a start (including Leno and Letterman).  The venerable show has been on since 1954 and has only had five permanent long-term hosts.  To give that up, and the money that comes with it, is an amazing position.  What surprises does Conan’s contract hold? Perhaps he wants to be released from his non-compete clause so he can go to Fox? The last thing late-night would need is a three-way race between Jay, David, and Conan.  Conan says that the show itself is too important to destroy.  Is that character, or something else?  More developing.

Letterman is having the most fun with the situation.  The last two nights he has had a lot of jokes and commentary on the situation.  Of course Letterman is no stranger to late-night drama.

Leno’s show has to move.  It si costing the affiliates too much money.  But more importantly, it is killing the Owned and Operated stations.  That directly affects NBC’s bottom line.  It is one thing to hurt the affiliate’s bottom lines, it is another to be hurting your own, especially as GE is trying to sell NBC off to Comcast and would like to get a decent dollar for the Network and all that goes with it.