Law Commons^™

Unplanned Obsolescence: Interpreting The Automatic Telephone Dialing System After The Smartphone Epoch, Walter Allison

Michigan Law Review

Technology regulations succeed or fail based upon their ability to regulate an idea. Constant innovation forces legislators to draft statutes aimed at prohibiting the idea of a device, rather than a specific device itself, because new devices with new capacities emerge every day. The Telephone Consumer Protection Act (TCPA) is a federal statute that imposes liability based on the idea of an automatic telephone dialing system (ATDS). But the statute’s definition of the device is ambiguous. The FCC struggles to coherently apply the definition to new technologies, and courts interpret the definition inconsistently. Federal circuit courts have split over these …

Net Neutrality: An Explainer, Kincaid C. Brown

Law Librarian Scholarship

Net neutrality is the idea that internet services or broadband providers should treat all content streaming through their systems the same, and providers who use their discretion to create “fast lanes,” block particular content, or throttle (slow down) internet speeds are not in keeping with how the internet ought to work.

Blacklining Editorial Privilege, Justin Hurwitz

Michigan Telecommunications & Technology Law Review

Over the past year, FCC Commissioner Mike O’Rielly has drawn valuable attention to various Commission procedures in need of reform. Of these procedures perhaps the most perplexing is that of “editorial privileges” – a process whereby Commission staff is granted permission to continue editing Commission Orders subsequent to their adoption, such that the text of the Order voted on by the Commission is not necessarily the same as that ultimately published in the Federal Register or otherwise released to the public. This procedure is longstanding – predating institutional memory; yet it is also entirely unprecedented in the canon of administrative …

Astroturf Campaigns: Transparency In Telecom Merger Review, Victoria Peng

University of Michigan Journal of Law Reform

Large telecommunications companies looking to merge spend millions of dollars in their lobbying efforts to clear regulatory hurdles and obtain approval for their proposed mergers. Corporations such as AT&T, Comcast, and Time Warner use public participation processes as vehicles to influence regulatory decision-making. In the Federal Communications Commission (FCC) merger review context, the notice- and-comment process and public hearings have become fertile breeding grounds for hidden corporate influence. Corporations spend millions on corporate social responsibility programs and call upon nonprofit organizations that receive their largesse to represent their corporate interests as grassroots interests when the FCC seeks public comment. This …

Network Neutrality And The First Amendment, Andrew Patrick, Eric Scharphorn

Michigan Telecommunications & Technology Law Review

The First Amendment reflects the conviction that the widest possible dissemination of information from diverse and antagonistic sources is essential to public welfare. Like the printing press, the Internet has dramatically transformed the marketplace of ideas by providing unprecedented opportunities for individuals to communicate. Though its growth continues to be phenomenal, broadband service providers— acting as Internet gatekeepers—have developed the ability to discriminate against specific content and applications. First, these gatekeepers intercept and inspect data transferred over public networks, then selectively block or slow it. This practice has the potential to stifle the Internet’s value as a speech platform by …

Wireless Localism: Beyond The Shroud Of Objectivity In Federal Spectrum Administration, Olivier Sylvain

Michigan Telecommunications & Technology Law Review

Recent innovations in mobile wireless technology have instigated a debate between two camps of legal scholars about federal administration of the electromagnetic spectrum. The first camp argues that the Federal Communications Commission (“FCC”) should define spectrum use rights more clearly and give spectrum licensees broad property rights in frequencies. The second camp argues that, rather than award exclusive licenses to the highest bidder, the FCC ought to open much, if not most, of the spectrum to unlicensed use by smartphones and tablets equipped with the newest spectrum administration technology. First, this Article shows that both of these camps comprise a …

Network Neutrality: Verizon V. Fcc, Anna S. Han

University of Michigan Journal of Law Reform Caveat

The Federal Communications Commission (“FCC”) is once again locking horns with the broadband behemoth, Verizon, over the issue of network neutrality. Although this conflict between the government and corporate giants is far from new, recent events have forced courts to give it close scrutiny. Given the explosive pace at which technology has expanded and permeated citizens’ daily lives, the judgments rendered have greater significance now than ever before.

Technology Convergence And Federalism: The Case Of Voip Regulation, Daniel A. Lyons

University of Michigan Journal of Law Reform Caveat

The Vermont Supreme Court may soon consider whether federal law permits the Public Service Board to regulate certain voice-over-internet-protocol (VoIP) services. Across the Hudson, Governor Andrew Cuomo recently sought to bar the New York Public Service Commission from adopting similar regulations. And these states are not alone: from Maine to Florida, several states are considering whether their jurisdiction over traditional telephone service encompasses this new technology, through which nearly one-third of American landline households receive telephone service. If so, nationwide VoIP providers could face up to fifty new legal regimes with which they must comply before offering service. If not, …

Unfit For Prime Time: Why Cable Television Regulations Cannot Perform Trinko's 'Antitrust Function', Keith Klovers

Michigan Law Review

Until recently, regulation and antitrust law operated in tandem to safeguard competition in regulated industries. In three recent decisions-Trinko, Credit Suisse, and Linkline-the Supreme Court limited the operation of the antitrust laws when regulation "performs the antitrust function." This Note argues that cable programming regulations-which are in some respects factually similar to the telecommunications regulations at issue in Trinko and Linkline-do not perform the antitrust function because they cannot deter anticompetitive conduct. As a result, Trinko and its siblings should not foreclose antitrust claims for damages that arise out of certain cable programming disputes.

Technology Convergence And Federalism: Who Should Decide The Future Of Telecommunications Regulation?, Daniel A. Lyons

University of Michigan Journal of Law Reform

This Article critically examines the division of regulatory jurisdiction over telecommunications issues between the federal government and the states. Currently, the line between federal and state jurisdiction varies depending on the service at issue. This compartmentalization might have made sense fifteen years ago, but the advent of technology convergence has largely rendered this model obsolete. Yesterday's telephone and cable companies now compete head-to-head to offer consumers the vaunted "triple play" of voice, video, and internet services. But these telecommunications companies are finding it increasingly difficult to fit new operations into arcane, rigid regulatory compartments. Moreover, services that consumers view as …

Fcc Jurisdiction Over Isps In Protocol-Specific Bandwidth Throttling, Andrew Gioia

Michigan Telecommunications & Technology Law Review

Over the past decade, the Internet has matured from its dial-up infancy into the nation's dominant communications infrastructure. Such rapid growth and accessibility--while fostering free speech and innovation like nothing before--has nonetheless created complex regulatory and policy questions for both the Federal Communications Commission (FCC) and the cable companies providing the nation's broadband Internet access. For instance, Comcast, one such Internet provider, has recently brought to the fore the question of how, and to what extent, the FCC can ensure an open and accessible Internet through the company's recent actions in selectively targeting and interfering with the connections of certain …

Choosing Between The Necessity And Public Interest Standards In Fcc Review Of Media Ownership Rules, Peter Dicola

Michigan Law Review

Section 202(h) of the Telecommunications Act of 1996, as amended, directs the Federal Communications Commission ("FCC") to review its media ownership rules every four years. But the statute contains an ambiguity regarding the standard of review that the FCC must apply during such proceedings. To retain a particular media ownership regulation, must the FCC merely show that the regulation advances one of the FCC's three public-interest goals for media: competition, diversity, and localism-applying a "public interest" standard? Or must the FCC meet the higher burden of demonstrating that the regulation is also indispensable for maintaining competition, diversity, or localism at …

The Fcc Complaint Process And Increasing Public Unease: Toward An Apolitical Broadcast Indecency Regime, Kurt Hunt

Michigan Telecommunications & Technology Law Review

[...]I propose depoliticizing the broadcast indecency regime by utilizing polling to determine the average broadcast viewer's opinion, divorced from all the pressures inherent in relying on the complaint process as a proxy. In section II, I will discuss the background and development of the broadcast indecency doctrine from the days of the Federal Radio Commission in the 1920s through the present day. I will also explain why the apparent increasing public unease is misleading, and why valid First Amendment concerns are steamrolled by the fiery nature of the debate. In section III, I will explain why the FCC's reliance on …

Out Of Thin Air: Using First Amendment Public Forum Analysis To Redeem American Broadcasting Regulation, Anthony E. Varona

University of Michigan Journal of Law Reform

American television and radio broadcasters are uniquely privileged among Federal Communications Commission (FCC) licensees. Exalted as public trustees by the 1934 Communications Act, broadcasters pay virtually nothing for the use of their channels of public radiofrequency spectrum, unlike many other FCC licensees who have paid billions of dollars for similar digital spectrum. Congress envisioned a social contract of sorts between broadcast licensees and the communities they served. In exchange for their free licenses, broadcast stations were charged with providing a platform for a "free marketplace of ideas" that would cultivate a democratically engaged and enlightened citizenry through the broadcasting of …

Prometheus Radio Project V. Fcc: The Persistence Of Scarcity, Aaron Perzanowski

Articles

Part I traces the history of broadcast regulation, emphasizing the development of the scarcity doctrine and the subsequent deregulatory trend. Part II examines the FCC's 2003 rule changes and the Third Circuit's analysis of those modifications in Prometheus Radio Project v. FCC. Part III analyzes the assumptions underlying the FCC's proffered explanation for its rule changes, ultimately concluding that they lack justification, and offers suggestions for responsible ownership deregulation. Part IV calls on Congress to reassert itself as the final arbiter of media policy.

Legacy Of Lost Opportunity: Designated Entities And The Federal Communications Commission's Broadband Pcs Spectrum Auction, A, Mark W. Munson

Michigan Telecommunications & Technology Law Review

The Federal Communications Commission's ("FCC") designated entity policy has challenged the efficiency of the use of auctions to allocate spectrum licenses. As an alternative to comparative hearings and lotteries, auctions provide an effective solution to the costs, administrative burdens, and delays associated with apportioning spectrum. Congress required the FCC to allow firms to participate in the auctions even if they had difficulty in obtaining financing. The FCC gave these firms, known as "designated entities," set-asides and other preferences to assist them in the competitive bidding process. In the broadband Personal Communications Services ("PCS") auctions, however, designated entities frequently were unable …

Life After Adarand: What Happened To The Metro Broadcasting Diversity Rationale For Affirmative Action In Telecommunications Ownership?, Leonard M. Baynes

University of Michigan Journal of Law Reform

The United States Supreme Court severely restricted affirmative action policies in Adarand Constructors, Inc. v. Pena. In this opinion, a majority of the Court held that all state or federally mandated affirmative action programs are to be analyzed under strict scrutiny. This test requires affirmative action programs to meet a compelling governmental interest and be narrowly tailored.

Adarand raised issues concerning the validity of the Federal Communications Commission's affirmative action ownership policies. Previously, the Court in Metro Broadcasting, Inc. v. FCC found the FCC minority ownership policies constitutional under a lower (intermediate) standard of review. In Adarand, the Court …

Schizophrenia Among Carriers: How Common And Private Carriers Trade Places, Rob Frieden

Michigan Telecommunications & Technology Law Review

This article will examine court cases and actions by the Federal Communications Commission (FCC) that distort the traditional concepts of common and private carriage by establishing new rights and responsibilities previously applicable to the other category of carrier. This article will also consider the feasibility of (a) maintaining the traditional common carrier regulatory model and (b) continuing the application of that model to basic services provided by local exchange carriers (LECs). This is especially important as LECs qualify to become private carriers tapping new market opportunities, even within the same geographical region where they provide basic services. Finally, this article …

The Information Highway Must Pay Its Way Through Cities: A Discussion Of The Authority Of State And Local Governments To Be Compensated For The Use Of Public Rights-Of-Way, Clarence A. West

Michigan Telecommunications & Technology Law Review

In the ever-changing telecommunications industry there appears to be an enormous amount of confusion not only as to the appropriate amount of compensation chargeable to the users of public rights-of-way, but also as to the very authority of state and local governments to require compensation. This was not always the case. It has long been a well-settled legal principle that local governments may receive reasonable "rental" compensation from private commercial entities for their use of local public property for private economic gain, even where federal statutory law restricts local governments from denying access to rights-of-way for telecommunications services. For example, …

Reforming Fcc Regulation Of Dominant Telephone Carriers: Putting Some Teeth Into The Test For Predation, Thomas K. Gump

University of Michigan Journal of Law Reform

This Note examines the ineffective protections against predatory pricing by AT&T contained in the price cap scheme. Part I outlines price cap regulation and explains how the FCC hopes that a test based on the average variable cost standard will detect predatory pricing. Part II argues that the FCC erred in adopting an average variable cost standard as the test for telecommunications predation because that standard ignores the high fixed costs common to all firms in the industry. Part II demonstrates that AT&T could engage in predatory pricing despite the protections contained in the regulatory scheme. Part II then examines …

American Broadcasting And The First Amendment, René L. Todd

Michigan Law Review

A Review of American Broadcasting and the First Amendment by Lucas A. Powe, Jr.

Misregulating Television: Network Dominance And The Fcc, Robert R. Morse Jr.

Michigan Law Review

A Review of Misregulating Television: Network Dominance and the FCC by Stanley M. Besen, Thomas G. Krattenmaker, A. Richard Metzger, Jr. and John R. Woodbury

Regulation Of Indecency In Political Broadcasting, Jonathan Golomb

University of Michigan Journal of Law Reform

The article considers both the constitutional and statutory aspects of the regulation of indecency in political broadcasting. The discussion is limited to considering "indecency," a term excluding obscenity or incitement to violence, because the government's power to regulate these types of speech is well established. Indecent speech would be protected if used in the print media, since it does not fall within the established First Amendment exceptions. The basic constitutional question, therefore, is whether the broadcast media are inherently different from the print media, so as to justify different treatment of indecent political speech. This article will contend that they …

Political Broadcasting After The Aspen Ruling: Legislative Reform Of Section 315(A) Of The Communications Act Of 1934, Stuart N. Brotman

University of Michigan Journal of Law Reform

The FCC's new interpretation of section 315(a) in the Aspen ruling greatly reduced its inhibitory effect on broadcasters. The ruling, however, has created further interpretive problems regarding the broadcast debate format, and has not completely resolved the more general problem of giving the electorate greater and more direct exposure to candidates during campaigns through programming that forces candidates to confront each other on the major issues. This article will discuss the. background of section 315(a), then explain each of its exemptions. Finally, it will propose possible reforms in the area of political broadcasting in light of the Aspen ruling.

The Power Of The Fcc To Regulate Newspaper-Broadcast Cross-Ownership: The Need For Congressional Clarification, Michigan Law Review

Michigan Law Review

The controversy surrounding the FCC's Second Report and . Order, its appeal, and the subsequent decision in NCCB raises basic questions concerning the statutory authority of the FCC to promulgate rules concerning newspaper-broadcast cross-ownership. This Note suggests that the FCC, notwithstanding judicial affirmation in NCCB of the Commission's authority to adopt such rules, might well be exercising more authority than Congress intended it to possess under the Communications Act of 1934. This Note therefore concludes that, irrespective of the merits of the Second Report and Order, Congress should reexamine and clarify the scope of the FCC's power in this regard.

The Fcc Computer Inquiry: Interfaces Of Competitive And Regulated Markets, Michigan Law Review

Michigan Law Review

Since the advent of computer technology, data processing and communication services have become increasingly interdependent. In 1966, the Federal Communications Commission launched the Computer Inquiry to explore the broad range of regulatory and policy problems generated by this technological development.2

Administrative Law-Community Representatives Have Standing To Challenge Fcc License Renewal-Office Of Communication Of United Church Of Christ V. Fcc, Michigan Law Review

Michigan Law Review

When the owners of a Jackson, Mississippi television station applied to the Federal Communications Commission (FCC) for a renewal of their broadcast license, representatives of the local Negro community filed a petition with the Commission, requesting it to deny the renewal. Petitioners contended that a renewal of the applicant's license would not be in the public interest since the station had consistently violated the Commission's "fairness doctrine" which requires broadcasters to encourage and implement a fair presentation of all sides of any controversial public issue discussed over their facilities. Specifically, petitioners alleged that, in its local programs dealing with racial …

Administrative Law--Procedure--Right Of Interention In Fcc Rate-Making Proceeding, Jon E. Denney

Michigan Law Review

In response to a petition of the Western Union Telegraph Company, the Federal Communications Commission began an investigation of the American Telephone and Telegraph Company's tariff charges on its "telpak" service. The American Communications Association, a trade union representing Western Union workers in the New York City area, petitioned to intervene. The hearing examiner's decision to deny intervention was affirmed by the Commission. A motion for reconsideration was also denied by the FCC because the union failed to show how its intervention in the proceeding would assist the Commission in determining the issues, as required by the rule reserving to …

Regulation Of Business - Antitrust Laws - Effect Upon A Subsequent Antitrust Suit Of Fcc Approval Of An Exchange Of Television Stations, John F. Powell S.Ed.

Michigan Law Review

United States v. Radio Corporation of America-Creation of independent regulatory agencies presented the courts with the problem of allocating jurisdiction whenever the determination of proper judicial action was found to require the resolution of issues which an administrative agency was competent to resolve. To meet this problem the doctrine of "primary jurisdiction" was developed whereby administrative issues are to be decided by the agency prior to the court's determination of issues not within the realm of the agency. Application of the doctrine is based on the need for efficient and uniform agency regulation and the desirability of utilizing agency …

Parties To Administrative Proceedings, Paul Oberst

Michigan Law Review

It is the purpose of this article to examine the statutory provisions, and the regulations and practices of the federal agencies, dealing with the rights of third persons, along with the relevant judicial decisions. The rights of third persons to notice, to participation in the hearing, and to appeal will be considered in turn. In general, the ultimate purposes of an administrative hearing are to inform the agency, to serve as a check upon arbitrary action, and to enable the individuals who will be affected by the decision to confront their opponents and to present their case in its best …