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Full-Text Articles in Law
The Contribution Of Eu Law To The Regulation Of Online Speech, Luc Von Danwitz
The Contribution Of Eu Law To The Regulation Of Online Speech, Luc Von Danwitz
Michigan Technology Law Review
Internet regulation in the European Union (EU) is receiving significant attention and criticism in the United States. The European Court of Justice’s (ECJ) judgment in the case Glawischnig-Piesczek v. Facebook Ireland, in which the ECJ found a take-down order against Facebook for defamatory content with global effect permissible under EU law, was closely scrutinized in the United States. These transsystemic debates are valuable but need to be conducted with a thorough understanding of the relevant legal framework and its internal logic. This note aims to provide the context to properly assess the role the ECJ and EU law play …
Symmetry And (Network) Neutrality, Tejas N. Narechania
Symmetry And (Network) Neutrality, Tejas N. Narechania
Michigan Law Review Online
In this short Essay, I take the opportunity to highlight one further potential asymmetry that may yet emerge from the Supreme Court’s application of Chevron’s many doctrines. Drawing on then-Judge Kavanaugh’s disdissental from the D.C. Circuit’s decision affirming network neutrality rules, I suggest that there is at least one vote on the Supreme Court—and perhaps more—for an asymmetric approach to the major questions doctrine. Moreover, I demonstrate how asymmetry in this context is deeply irrational. As applied to network neutrality, the asymmetry has at least one of two effects. One, it might simply favor one large industry over another, …
Net Neutrality: An Explainer, Kincaid C. Brown
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.
You Can’T Say That!: Public Forum Doctrine And Viewpoint Discrimination In The Social Media Era, Micah Telegen
You Can’T Say That!: Public Forum Doctrine And Viewpoint Discrimination In The Social Media Era, Micah Telegen
University of Michigan Journal of Law Reform
The growing prevalence of privately-owned social media platforms is changing the way Americans and their governments communicate. This shift offers new opportunities, but also requires a reinterpretation of the First Amendment’s proscription of government limitations of speech. The public forum doctrine and its proscription of viewpoint discrimination seem particularly stretched by the digital revolution and the development of social media. In ongoing cases, litigants and courts have invoked the doctrine to limit the government’s ability to ‘block’ those who comment critically on government pages—much to the chagrin of those who note the private status of the companies hosting the pages …
Network Neutrality: Verizon V. Fcc, Anna S. Han
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
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, …
Viewer Discretion Is Advised: Disconnects Between The Marketplace Of Ideas And Social Media Used To Communicate Information During Emergencies And Public Health Crises, Peter Maggiore
Michigan Telecommunications & Technology Law Review
In a sense, social media has become the ideal manifestation of the "Marketplace of Ideas" (hereinafter "Marketplace") that Chief Justice Oliver Wendell Holmes articulated. The Marketplace concept will be discussed in greater detail below, but in brief, it is the theory that truth will surface over falsehoods when all opinions and ideas are freely expressed, because the value or worth of that opinion or idea will be determined on the market of public opinion. Part I of this Note will examine the Marketplace concept through the works of various legal and philosophical theorists. Chief among them is Frederick Schauer's work …
Unfit For Prime Time: Why Cable Television Regulations Cannot Perform Trinko's 'Antitrust Function', Keith Klovers
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.
The Journalism Ratings Board: An Incentive-Based Approach To Cable News Accountability, Andrew Selbst
The Journalism Ratings Board: An Incentive-Based Approach To Cable News Accountability, Andrew Selbst
University of Michigan Journal of Law Reform
The American establishment media is in crisis. With newsmakers primarily driven by profit, sensationalism and partisanship shape news coverage at the expense of information necessary for effective self-government. Focused on cable news in particular this Note proposes a Journalism Ratings Board to periodically rate news programs based on principles of good journalism. The Board will publish periodic reports and display the news programs' ratings during the programs themselves, similar to parental guidelines for entertainment programs. In a political and legal climate hostile to command-and-control regulation, such an incentive-based approach will help cable news fulfill the democratic function of the press.
Technology Convergence And Federalism: Who Should Decide The Future Of Telecommunications Regulation?, Daniel A. Lyons
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 …
Wireless Net Neutrality Regulation And The Problem With Pricing: An Empirical, Cautionary Tale, Babette E.L. Boliek
Wireless Net Neutrality Regulation And The Problem With Pricing: An Empirical, Cautionary Tale, Babette E.L. Boliek
Michigan Telecommunications & Technology Law Review
I present here a unique empirical analysis of the consumer welfare benefits of prior regulation in the mobile telecommunications industry. In particular, I analyze the relative consumer benefits of state rate regulation and federal entry regulation. The institution of filing requirements and FTC review and approval of various consumer pricing regimes is highly analogous to the consumer price controls imposed by various state level public utility commissions in the past. Furthermore, the imposition of a zero-price rule is analogous to past rate regulation; in particular it is similar to past wholesale regulation with its underlying principles of open access and …
Regulating Robocalls: Are Automated Calls The Sound Of, Or A Threat To, Democracy, Jason C. Miller
Regulating Robocalls: Are Automated Calls The Sound Of, Or A Threat To, Democracy, Jason C. Miller
Michigan Telecommunications & Technology Law Review
African-American voters receive a phone message implying that they are not registered to vote. Others hear "an almost threatening male voice," a "fake New York accent," factual distortions about legislation, false endorsements from controversial groups, calls promoting one candidate claiming to be from his opponent, and a constant barrage of annoying phone calls designed to make voters think a different candidate was sponsoring them. These messages were delivered through automated political telephone calls, also known as robocalls. Robocalls are cheap and efficient--one can deliver a pre-recorded message through 100,000 automated phone calls in one hour for only $2000. Consequently, robocalls …
Linkline's Institutional Suspicions, Daniel A. Crane
Linkline's Institutional Suspicions, Daniel A. Crane
Articles
Antitrust scholars are having fun again. Not so long ago, they were the poor, redheaded stepchildren of the legal academy, either pining for the older days of rigorous antitrust enforcement or trying to kill off what was left of the enterprise. Other law professors felt sorry for them, ignored them, or both. But now antitrust is making a comeback of sorts. In one heady week in May of 2009, a front-page story in the New York Times reported the dramatic decision of Christine Varney-the Obama Administration's new Antitrust Division head at the Department of Justice-to jettison the entire report on …
Out Of Thin Air: Using First Amendment Public Forum Analysis To Redeem American Broadcasting Regulation, Anthony E. Varona
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 …
Not From Concentrate? Media Regulation At The Turn Of The Millennium M Arch 18-19, 2005, Journal Of Law Reform
Not From Concentrate? Media Regulation At The Turn Of The Millennium M Arch 18-19, 2005, Journal Of Law Reform
University of Michigan Journal of Law Reform
Transcript from a March 2005 Symposium held in the University of Michigan Law School, Hutchins Hall.
Sailing Toward Safe Harbor Hours: The Constitutionality Of Regulating Television Violence, Eric C. Chaffee
Sailing Toward Safe Harbor Hours: The Constitutionality Of Regulating Television Violence, Eric C. Chaffee
University of Michigan Journal of Law Reform
Because of the recent focus on television violence, it is more a question of "when," rather than "if," Congress will take action on this issue. "Safe harbor" regulation, or restricting violent programming to certain hours of the day, is one form of regulation that is recurrently suggested as a means for dealing with the potential ills created by television violence. The possibility of such regulation implicates numerous constitutional issues. This Article addresses whether "safe harbor" regulation of television violence is feasible without violating the First Amendment and other provisions of the Constitution.
A Shadow Government: Private Regulation, Free Speech, And Lessons From The Sinclair Blogstorm, Marvin Ammori
A Shadow Government: Private Regulation, Free Speech, And Lessons From The Sinclair Blogstorm, Marvin Ammori
Michigan Telecommunications & Technology Law Review
Because of the economics of online information, thousands who do not know each other can band together in hours, without previous organizational coordination or any persistent central coordination, to affect others and conform society to their idea of the social good. This changes the dynamic of political action and the ability of unaffiliated, lone individuals to respond to social acts where government and the market have not. Through ad hoc volunteerism, the Sinclair participants produced regulatory action against a private party with whom they were not transacting--because they believed government failed to do so. Although ad hoc volunteerism has received …
Application Of The Public-Trust Doctrine And Principles Of Natural Resource Management To Electromagnetic Spectrum, Patrick S. Ryan
Application Of The Public-Trust Doctrine And Principles Of Natural Resource Management To Electromagnetic Spectrum, Patrick S. Ryan
Michigan Telecommunications & Technology Law Review
The Electromagnetic spectrum is among our most valuable natural resources. Yet while the past few decades have seen a rich body of environmental law develop for other natural resources, this movement has largely passed over the electromagnetic spectrum. This Article argues that to remedy that situation, the public-trust doctrine, which is now a cornerstone of modern environmental law, should be extended to the electromagnetic spectrum. This extension would not be a leap: the public-trust doctrine has already been used to guarantee the public access to various bodies of water (not just navigable water), and to protect recreational lakes and beaches, …
Regulating Speech Across Borders: Technology Vs. Values, Matthew Fagin
Regulating Speech Across Borders: Technology Vs. Values, Matthew Fagin
Michigan Telecommunications & Technology Law Review
The disfavored status within international law of unilateral state-based regulations that target extraterritorial actors arises from the inherent challenges such actions represent to state sovereignty. In the context of the Internet, the complexity of choice-of-law analysis is heightened: regulations imposed by one state have the potential to effectively block communications to citizens of all states and undermine the conflicting regulatory aims of neighboring states. Early legal commentators built upon this cascading chilling effect of state-based regulation to proclaim both the futility and illegitimacy of state-based action in the online environment. Subsequent scholars have demonstrated the commensurability of state-based online regulation …
Proactive Legislation And The First Amendment, Stuart Minor Benjamin
Proactive Legislation And The First Amendment, Stuart Minor Benjamin
Michigan Law Review
It is a commonplace that the world is changing rapidly, with whole sectors of the economy being transformed. New forms of communication, like the World Wide Web, e-mail, and satellite television, have risen from obscurity to ubiquity in less than a decade. The speed of these changes has led some to express concern about the ability of governments to respond. The fear is that governments cannot keep up with developments as they occur and thus get hopelessly behind. The solution, according to some, is for the government to act proactively - before a harm has arisen, so that the government …
Telemedicine: Rx For The Future Of Health Care, Susan E. Volkert
Telemedicine: Rx For The Future Of Health Care, Susan E. Volkert
Michigan Telecommunications & Technology Law Review
Quite simply, telemedicine symbolizes and catalyzes the clash between the reality of our legal and political approach to health care and the American dream of bringing health care to all patients. Telemedicine, like our health care delivery systems, is regulated by many layers of government. Unlike other issues, telemedicine cuts through and challenges the traditional controls of access and cost. As such, telemedicine is a microcosm of our health care delivery system and a lens through which one may analyze the obstacles to access in the current system. This article examines these issues, proposes that telemedicine's goal should be to …
Schizophrenia Among Carriers: How Common And Private Carriers Trade Places, Rob Frieden
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, …
Telecommunications In Transition: Unbundling, Reintegration, And Competition, David J. Teece
Telecommunications In Transition: Unbundling, Reintegration, And Competition, David J. Teece
Michigan Telecommunications & Technology Law Review
The world economy is experiencing a technological revolution, fueled by rapid advances in microelectronics, optics, and computer science, that in the 1990s and beyond will dramatically change the way people everywhere communicate, learn, and access information and entertainment. This technological revolution has been underway for about a decade. The emergence of a fully-interactive communications network, sometimes referred to as the "Information Superhighway," is now upon us. This highway, made possible by fiber optics and the convergence of several different technologies, is capable of delivering a plethora of new interactive entertainment, informational, and instructional services that are powerful and user-friendly. The …
Turner Broadcasting, The First Amendment , And The New Electronic Delivery Systems, Henry Geller
Turner Broadcasting, The First Amendment , And The New Electronic Delivery Systems, Henry Geller
Michigan Telecommunications & Technology Law Review
After ducking the issue of the First Amendment status of cable television for years, the United States Supreme Court rendered its most important decision concerning the regulation of the new electronic media in Turner Broadcasting, Inc. v. FCC. Turner involved the constitutionality of the "must-carry" provisions of the 1992 Cable Act (the "Act" or "Cable Act") which require cable systems to carry specified local broadcast television stations. While cable television began over four decades ago as a community antenna service, it changed drastically after the advent of satellite in the mid-1970's to also provide scores of satellite-delivered programs and to …
Unconstitutional Telco-Cable Cross-Ownership Ban: It Seemed Like A Good Idea At The Time, Arthur Bresnahan
Unconstitutional Telco-Cable Cross-Ownership Ban: It Seemed Like A Good Idea At The Time, Arthur Bresnahan
Michigan Telecommunications & Technology Law Review
This article is a survey of the law regarding the federal government's ability to regulate a telephone company's provision of video programming to subscribers in its service area. Part I of the article is a history of the telco-cable cross-ownership ban. Part II is an analysis of the cases striking down the ban, exploring the rationale of these cases on a consolidated basis. Part III is a summary of the applicable standards by which to evaluate future attempts by Congress or the FCC to regulate telephone companies' provision of video programming.
Reforming Fcc Regulation Of Dominant Telephone Carriers: Putting Some Teeth Into The Test For Predation, Thomas K. Gump
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
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.
Questioning Broadcast Regulation, Jonathan Weinberg
Questioning Broadcast Regulation, Jonathan Weinberg
Michigan Law Review
A Review of Seven Dirty Words and Six Other Stories: Controlling the Content of Print and Broadcast by Matthew L. Spitzer
The Right To Speak, The Right To Hear, And The Right Not To Hear: The Technological Resolution To The Cable/Pornography Debate, Michael I. Meyerson
The Right To Speak, The Right To Hear, And The Right Not To Hear: The Technological Resolution To The Cable/Pornography Debate, Michael I. Meyerson
University of Michigan Journal of Law Reform
This Article concludes that the power of government to regulate cable pornography is limited to that which is legally obscene. Part I reviews Supreme Court cases delineating the relationship between the rights of privacy in the home and of freedom of speech. Part II demonstrates that the technology of cable television provides the solution to the pornography dilemma. Cable television preserves both privacy and speech interests because individual subscribers can be given the physical means to block out programming they find personally offensive without affecting the ability of others to receive that programming. Where such accommodation of interests is permissible, …