Law Commons^™

Derailed By The D.C. Circuit: Getting Network Management Regulation Back On Track, Edward B. Mulligan V

Federal Communications Law Journal

As the Internet continues to play a more central role in the daily lives of Americans, concerns about how Internet service providers manage their networks have arisen. Responding to these concerns and recognizing the importance of maintaining the open and competitive nature of the Internet, the FCC has taken incremental steps to regulate network management practices. Perhaps the most significant of these steps was its August 2008 Memorandum Decision and Order in which the FCC condemned Comcast Corporation's network management practices as "discriminatory and arbitrary." In that Order, the FCC required that Comcast (1) adopt new practices that complied with …

Sending Out An S.O.S.: Public Safety Communications Interoperability As A Collective Action Problem, Jerry Brito

Federal Communications Law Journal

Symposium: The Crisis in Public Safety Communications. Held at the Mercatus Center at George Mason University, December 8, 2006.

Lack of public safety communications interoperability is the result of what economist Mancur Olson called a collective action problem. In this case, the collective action problem that first responders face is caused by the federal policy of allocating and assigning public safety spectrum in a way that segregates first responders to their own bands and ultimately Balkanizes their radio systems. This Article shows that market forces can be employed to solve collective action problems, and it surveys several successful commercial interoperable …

Brand X And The Wireline Broadband Report And Order: The Beginning Of The End Of The Distinction Between Title I And Title Ii Services, J. Steven Rich

Federal Communications Law Journal

This Article traces the development of the FCC's distinction between "telecommunications services" subject to common carrier services under Title II of the 1934 Communications Act and "information services" regulated under Title I of the Act from the Computer Inquiry line of cases through the Brand X decision and recent Wireline Broadband Report and Order. The Author pays particular attention to the Brand X decision and the FCC's Wireline Broadband Order and its implications, suggesting that the Order may be subject to reversal when it is challenged in court and proposing how the Commission might react to a reversal. The Author …

Communications Policy For 2006 And Beyond, Reed H. Hundt, Gregory L. Rosston

Federal Communications Law Journal

In this Article, the Authors propose sweeping changes to the current telecommunications regulatory regime. With impending reform in telecommunications laws, the Authors argue that an important first step is the creation of a bipartisan, independent commission to examine and recommend implementation of more market-oriented communications policy. Through maximizing the operation of the markets, the authors argue that communications policy will better serve its goals of increasing business productivity and consumer welfare through the better services and lower prices. Important steps to achieve optimal market operation include deregulating retail prices where multifirm competition is available, minimizing the cost of public property …

Broadcast Flags And The War Against Digital Television Piracy: A Solution Or Dilemma For The Digital Era?, Debra Kaplan

Federal Communications Law Journal

With the advent of digital TV, many homes in the U.S. are now on the cutting edge of what is likely to be a sea change in how this country watches TV. While these homes can now begin to enjoy the numerous benefits of the technology, regulators and industry experts are working to craft responses to problems, both actual and anticipated, that the technology creates. Mindful of the piracy issues that came with the popularity of digital file formats in the music industry, the FCC addressed piracy in the digital TV context by endorsing the use of "broadcast flags" on …

Is Federal Preemption Efficient In Cellular Phone Regulation, Thomas W. Hazlett

Federal Communications Law Journal

While many recent state-level efforts to regulate various aspects of the cellular phone industry have been abandoned in favor of federal regulations, other attempts by state regulators still exist. For this reason, Thomas Hazlett proposes that federal regulation is generally more appropriate than state-level action, due to the nature of the cellular industry. After a brief history of the industry, the author analyzes the pros and cons associated with state and federal regulation. The Article then proceeds to address the efficiencies created by national networks and proposes that the fragmentation of controlling regulatory power would reduce these efficiencies. Following a …

Access To Local Rights-Of-Way: A Rebuttal, William Malone

Federal Communications Law Journal

This Author rebuts the proposals and analysis regarding the impact of local rights-of-way access on competitive local exchange carriers put forth in a May 2002 FCLJ Article by Christopher Day. He argues that Day's Article lacks persuasive evidence that CLECs are harmed by lack of rights-of-way access. He states, first, that Day has misconceived the intent of the rights-of-way requirements in the Telecommunications Act of 1996 and, second, that the FCC does not have the authority to make substantive adjucative decisions that Day called for. He concludes that neither of the proposals made by Day-an amendment to the Telecommunications Act …

Increasing Telephone Penetration Rates And Promoting Economic Development On Tribal Lands: A Proposal To Solve The Tribal And State Jurisdictional Problems, Jennifer L. King

Federal Communications Law Journal

Under the Telecommunications Act of 1996, Congress instructed the FCC to ensure that all Americans have access to affordable telecommunications services. Consistent with that mandate, the FCC implemented a series of public hearings to discuss with tribes the issues they face concerning low telephone penetration rates. The FCC recommended investigation of universal service in unserved and underserved areas because telephone penetration rates among low-income consumers on tribal lands lagged behind rates in the rest of the country. From these hearings, the FCC proposed a jurisdictional framework to determine which eligible carriers would be under tribal, state, or federal jurisdiction. This …

Federal Court Jurisdiction Over Private Tcpa Claims: Why The Federal Courts Of Appeals Got It Right, Kevin N. Tharp

Federal Communications Law Journal

The Telephone Consumer Protection Act of 1991 protects the privacy interests of residential telephone subscribers by placing restrictions on unsolicited, automated telephone calls to the home and facilitates interstate commerce by restricting certain uses of facsimile machines and automatic dialers. Since the statute is silent regarding federal district court jurisdiction over private TCPA claims, federal courts scramble in search for existing law to support their conclusions that the TCPA divests federal district courts of jurisdiction over private TCPA claims. In addition to the reasoning offered by the circuit courts, this Notes discusses the jurisdiction issue and adds an important reason …

False Alarm?, Henry H. Perritt, Jr., Margaret G. Stewart

Federal Communications Law Journal

No abstract provided.

Allowing Fda Regulation Of Communications Software Used In Telemedicine: A Potentially Fatal Misdiagnosis?, Ann K. Schooley

Federal Communications Law Journal

Communications technology is changing and improving the way that health care services are delivered to patients. Telemedicine, or the use of communications technology to provide medical care, allows doctors to treat patients in rural areas who otherwise would not have access to medical services. With the development and use of telemedicine, however, comes the burden of government regulation. The Food and Drug Administration (FDA) is just beginning to assert its jurisdiction over telemedicine, seeking to regulate telemedicine systems as medical devices under 21 U.S.C. § 321(h). Should the FDA strongly assert its jurisdiction, it has the ability to regulate entire …

Balancing The Scales: The 1996 Telecommunications Act And Eleventh Amendment Immunity, Cynthia L. Bauerly

Federal Communications Law Journal

The Telecommunications Act of 1996 explicitly created a role for federal courts in the interconnection process. However, parties' ability to seek federal review of interconnection agreements is no longer as straightforward as the language of the Act implies. The Supreme Court's unnecessarily novel and narrow reading of Eleventh Amendment immunity in Seminole Tribe v. Florida renders unenforceable the federal review provisions of the Act against state regulatory commissions. While some interconnection agreements may find their way into federal court, for example, where a party seeking to interconnect sues an incumbent provider instead of the state commission, enforcement of a federal …

International Jurisdiction In Cyberspace: Which States May Regulate The Internet?, Stephan Wilske, Teresa Schiller

Federal Communications Law Journal

The Internet now reaches 60 million users in 160 countries, with the number increasing each year. Although cyberspace has been viewed as a self-regulating entity controlled by no government, this myth is being destroyed as the global Internet community expands. With this expansion comes a question: Who has the authority to regulate cyberspace? Given that decisions about the Internet reach far beyond national borders, the answer to this question is unknown, but certainly has broad implications. Traditional laws of international jurisdiction, including jurisdiction to prescribe, jurisdiction to adjudicate, and jurisdiction to enforce, offer some clear answers. However, further development of …

Give Peace A Chance: Fcc-State Relations After California Iii, Jonathan Jacob Nadler

Federal Communications Law Journal

The Communications Act of 1934 established a dual regulatory scheme, whereby the FCC has authority over interstate telecommunications service, while the states retain authority over purely intrastate telecommunications. This has led to a "border war" between the FCC and the states over exactly where the dividing line between their respective regulatory spheres lies. They have also clashed over the scope of permissible FCC preemption of state regulatory authority when that authority conflicts with federal policies. After twenty years of conflict, however, three recent appellate decisions may have provided an opportunity to bring the conflict to an end by clarifying both …