Administrative Law Commons^™

Wikileaks And The First Amendment, Geoffrey R. Stone

Federal Communications Law Journal

FCBA Distinguished Speaker Series

In November 2010, Julian Assange's WikiLeaks collaborated with major media organizations to release thousands of classified U.S. State Department documents. American soldier Bradley Manning stands accused of leaking those documents to the website. In response, Congress introduced the SHIELD Act to amend the Espionage Act of 1917, making it a crime for any person to disseminate any classified information concerning American intelligence or the identity of a classified informant. Such sweeping language, while possibly constitutional as applied to government employees like Manning, is plainly unconstitutional as applied to those like Assange and WikiLeaks who subsequently publish …

Law And The Open Internet, Adam Candeub, Daniel Mccartney

Federal Communications Law Journal

The FCC has issued a new set of Internet access regulations and policies (namely Preserving the Open Internet Broadband Industry Practices, Report and Order, FCC 10-201, rel. Dec. 23, 2010), which would prohibit broadband service providers like AT&T or Comcast from discriminating against unaffiliated content providers. The FCC's proceedings, and the network neutrality debate, concentrate on two economic questions: (1) whether to broadband service providers can or will steer traffic to affiliated content limiting consumer access, and (2) how to preserve the Internet's capacity for creativity and innovation. Yet despite the prominence of economics in the debate, economic theory cannot …

Reforming Retransmission Consent, Meg Burton

Federal Communications Law Journal

Under the retransmission consent regulations of the 1992 Cable Act, broadcasters and cable providers must negotiate with one another for permission to retransmit a broadcast signal over a cable system. While the majority of such negotiations are resolved amicably, there has been a growing trend of negotiations resulting in signal blackouts that harm consumers. In March 2010, cable providers filed a Petition for Rulemaking with the FCC arguing that the current regulations are outdated and asking that the FCC alter the regulations to curb harmful negotiation tactics employed by broadcasters. Broadcasters replied that the retransmission consent scheme is working as …

Bart Cell Phone Service Shutdown: Time For A Virtual Forum?, Rachel Lackert

Federal Communications Law Journal

The balancing act between protecting First Amendment rights and the necessity of law enforcement to maintain the public order is not simple under normal circumstances. On August 11, 2011, San Francisco's Bay Area Rapid Transit ("BART") created a paradigm embodying the very essence of this problem by shutting down cell phone and Internet service to prevent citizens from organizing and planning a protest. Both the constitutional and telecommunications law implications of BART's cell phone and Internet shutdown beg for analysis and reform, especially in an age of rapidly advancing technology. This Note analyzes the legal implications of BART's shutdown, and …

Should Cyber Exploitation Ever Constitute A Demonstration Of Hostile Intent That May Violate Un Charter Provisions Prohibiting The Threat Or Use Of Force?, Anna Wortham

Federal Communications Law Journal

More and more, the United States and other countries rely on complex infrastructures that are primarily controlled by information technology. Although extremely destructive cyber threats and attacks against nations are a reality, the laws governing cyber exploitation have not kept pace with this threat. Because the United States and other nations may use cyber capabilities offensively as well as defensively, it is important that the laws for engaging in such cyber conflict be well defined. Currently, it seems unlikely that cyber exploitation can ever be regarded as a threat or use of force under the UN Charter because it is …

Behavioral Advertising: The Cryptic Hunter And Gatherer Of The Internet, Joanna Penn

Federal Communications Law Journal

In an era where three out of every four Americans have Internet access, the term "surfing" has transformed from riding waves into running the risk of having private information gathered, stored, and disseminated-all without the user's knowledge or permission. This new found online practice, known as "behavioral advertising," is a veritable goldmine for those companies that know the game. But will the FTC or Congress soon make new rules concerning how to play? This Note begins by explaining the differences between behavioral targeting and retargeting and the techniques that the two methods use to collect data. This Note then explores …

An End To End-To-End? A Review Essay Of Barbara Van Schewick’S Internet Architecture And Innovation, Adam Candeub

Federal Communications Law Journal

Amidst much controversy, the FCC released its landmark "network neutrality" order in December 2010. This regulation prohibits Internet service providers, such as Verizon or Comcast, from discriminating in favor of traffic or content that they own or with which they are affiliated. Professor Barbara van Schewick's recently published book, Internet Architecture and Innovation, could not be timelier. Employing a variety of economic and technical arguments, van Schewick defends the type of regulation the FCC passed as necessary to preserve the Internet's potential for innovation. My central critique of Internet Architecture is its deployment of economic theories on one side of …

The Fcc’S Sponsorship Identification Rules: Ineffective Regulation Of Embedded Advertising In Today’S Media Marketplace, Jennifer Fujawa

Federal Communications Law Journal

In the contemporary media landscape, the advertising industry is increasingly relying on embedded advertising to reach consumers. The scope of embedded advertising in today's marketplace raises significant concerns and complicated First Amendment questions regarding the type of regulation needed to suit the interests of all parties concerned. In 2008, the FCC released a joint Notice of Intent/Notice of Proposed Rulemaking entitled Sponsorship Identification Rules & Embedded Advertising, which requested comments on the FCC's proposed changes to its sponsorship identification rules in light of this growing prevalence of embedded advertising. Yet, four years later, the FCC's sponsorship identification rules are exactly …

Of Burning Houses And Roasting Pigs: Why Butler V. Michigan Remains A Key Free Speech Victory More Than A Half-Century Later, Clay Calvert

Federal Communications Law Journal

More than fifty years after the U.S. Supreme Court rendered its unanimous decision in Butler v. Michigan, the case remains a pivotal-if unheralded and perhaps underappreciated-victory for freedom of speech. This Article analyzes the Butler principle and demonstrates how courts repeatedly apply it across different media platforms and in a myriad of factually distinct contexts, ranging from prohibitions on the sale of sex toys to bans on beer bottles with offensive labels. The Article initially provides an in-depth look at Butler, drawing on literary scholarship, historical newspaper articles from the time of the case, and other sources. It then illustrates …

Is It Time To Recreate The E-Rate Program?, Lynne Holt, Mary Galligan

Federal Communications Law Journal

The Schools and Libraries program, commonly known as the "E-rate" program, was created by the FCC in 1997, as authorized by the federal Telecommunications Act of 1996. The E-rate program provides eligible schools and libraries with discounts of 20 to 90 percent from the rates charged by providers of telecommunications services, Internet access, and internal network connections. These discounts are paid from the federal Universal Service Fund under the regulatory oversight of the FCC. The FCC has modified certain aspects of the program since its inception but has not modified its highest programmatic funding priorities-support for telecommunications and Internet access. …

Assessing Competition In U.S. Wireless Markets: Review Of The Fcc’S Competition Reports, Gerald R. Faulhaber, Robert W. Halm, Hal J. Singer

Federal Communications Law Journal

The FCC's 14th and 15th Annual Wireless Competition reports review a wide variety of evidence, both direct (how firms and customers behave) and indirect (industry concentration measures) in making its competitive assessment. The reports are silent on how to interpret this evidence. In contrast, modem antitrust analysis relies far more on direct evidence. In failing to put more weight on the relevant direct market evidence to reach an informed competitive assessment, the 14th and 15th reports invite erroneous conclusions about the state of competition in wireless markets. The authors are concerned that these erroneous conclusions eventually could adversely influence regulatory …

Survival Of The Standard: Today’S Public Interest Requirement In Television Broadcasting And The Return To Regulation, Drew Simshaw

Federal Communications Law Journal

The notion that broadcasters must broadcast in the public interest has always been a requirement; exactly how this requirement is met has taken many forms. This Note examines the history of the public interest requirement in broadcasting-from vagueness to regulation to good faith and presumptions of compliance-and considers the appropriate direction for the public interest requirement's future. The deregulation of the 1980s served a valuable purpose at the time by lifting burdens and sparking innovation. It is time to examine those innovative methods of ascertaining the needs of our communities and providing desired programming, in order to determine ways in …

Wiretapping The Internet: The Expansion Of The Communications Assistance To Law Enforcement Act To Extend Government Surveillance, Christa M. Hibbard

Federal Communications Law Journal

Criminal use of the Internet to circumvent traditional government phone wiretaps has inspired the Obama Administration to create a proposal to expand the Communications Assistance to Law Enforcement Act ("CALEA"). CALEA was passed in 1994 to regulate telephone and broadband companies to ensure compliance with standards to enable government wiretapping. The proposed amendment of CALEA would allow the government to require all communications service providers to meet technical standards necessary to comply with a wiretap order. The expansion of CALEA would likely widen its scope to social networking sites, instant messaging, gaming consoles that allow conversation among multiple players, and …

Consumer Watchdog: The Fcc’S Proposed Rulemaking To Help Consumers Avoid Bill Shock, Cameron Robinson

Federal Communications Law Journal

This Note discusses the proposed rulemaking by the FCC in order to empower consumers against "bill shock." Bill shock is described as what a consumer experiences when he or she receives a bill for his or her cellular phone that is much higher than expected, usually on account of roaming charges. This Note will argue in favor of rulemaking by the FCC and explain how the consumer will be empowered against the confusion of the current system.

From Betamax To Youtube: How Sony Corporation Of America V. Universal City Studios, Inc. Could Still Be A Standard For New Technology, Veronica Corsaro

Federal Communications Law Journal

Internet technological innovations, particularly the development of Peer-to-Peer ("P2P") networks and the proliferation of user-generated content sites, have introduced considerable challenges for the application of copyright law and infringement liability. The response from the courts and Congress has been mixed, with severe legal curtails being applied to P2P technology while usergenerated content sites have been afforded a level of protection against infringement claims as part of the Digital Millennium Copyright Act's section 512 "safe harbor" provisions. However, these provisions have raised concerns about the issue of secondary copyright liability, a matter that has still been left undefined. This Note will …

When Does F*** Not Mean F***?: Fcc V. Fox Television Stations And A Call For Protecting Emotive Speech, W. Wat Hopkins

Federal Communications Law Journal

The Supreme Court of the United States does not always deal cogently with nontraditional language. The most recent example is FCC v. Fox Television Stations, in which the Justices became sidetracked into attempting to define the f-word and then to determine whether, when used as a fleeting expletive rather than repeatedly, the word is indecent for broadcast purposes. The Court would do well to avoid definitions and heed Justice John Marshall Harlan's advice in Cohen v. California to provide protection for the emotive, as well as the cognitive, element of speech

Putting A Price On Dirt: The Need For Better-Defined Limits On Government Fees For Use Of The Public Right-Of- Way Under Section 253 Of The Telecommunications Act Of 1996, Thomas W. Snyder, William Fitzsimmons

Federal Communications Law Journal

This Article addresses the enactment and inconsistent application of Section 253 of Telecommunications Act of 1996 ("FTA"). Most courts initially held that Section 253 imposed strong limitations on local governments seeking to charge fees to telecommunications carriers for use of the public rights-of-way ("PROW') by generally limiting the fees to management costs. Unfortunately, recent cases allowed local governments broad latitude in charging PROW fees to generate revenue, even where the fees are used to subsidize other government services. These "revenue-generating" fees are dangerous to the development of competition and the deployment of Internet services, which were the two primary goals …

Antitrust Review Of The At&T/Tmobile Transaction, Allen P. Grunes, Maurice E. Stucke

Federal Communications Law Journal

In August 2011, the United States brought a landmark antitrust lawsuit to prevent the merger of two of the nation's four largest mobile wireless telecommunications services providers, AT&T Inc. and T-Mobile USA, Inc. But why are so many elected officials asking the Obama administration to intercede in the Department of Justice's lawsuit to force a settlement? Why are they approving a merger that would likely lead to higher prices, fewer jobs, less innovation, and higher taxes for their constituents? Does it have anything to do with the money they are receiving from AT&T and T-Mobile? This Article examines the recent …

Spectrum Reallocation And The National Broadband Plan, Jeffrey A. Eisenach

Federal Communications Law Journal

Of the several significant changes in United States telecommunications policy proposed by the National Broadband Plan, none are more substantial than its proposals for spectrum policy. In particular, the Plan proposes to reallocate 500 MHz of spectrum from broadcast television, mobile satellite, government and other current uses to "mobile broadband" through the use of innovative "incentive auctions" and other voluntary, market-oriented mechanisms. The Plan's spectrum proposals have the potential to be a major step forward in the decades-long, bipartisan effort to replace "command-and-control" spectrum allocation with a more flexible, dynamic and market-oriented approach. Considerable work remains to be done, however, …

Statewide Cable Franchising: Expand Nationwide Or Cut The Cord?, James G. Parker

Federal Communications Law Journal

In the name of increasing competition in the cable television market, Congress passed the Telecommunications Act of 1996. While this eliminated the barriers to entry using federal law, it did not change the nature of municipality-based cable system monopolies. In an effort to expand competition more quickly and efficiently, the phone companies (Verizon and AT&T) successfully supported legislation in at least twenty-five states that permits a single state application to compete statewide. This Note explores the varying approaches taken in the laws passed to date, analyzes the outcomes flowing from those implemented plans, and provides recommendations of the best practices …

Are You Ready For Some Football?: How Antitrust Laws Can Be Used To Break Up Directv's Exclusive Right To Telecast Nfl's Sunday Ticket Package, Ariel Y. Bublick

Federal Communications Law Journal

There is almost no question that football has become modem America's pastime. Football has never been more popular, and every Sunday people are clamoring to watch as many games as possible. The Sunday Ticket package allows viewers to watch any National Football League ("NFL") game being played at any given time. However, the NFL has only granted DirecTV the right to air the Sunday Ticket package, denying this excellent service to a majority of television viewers. By limiting the reach of the Sunday Ticket package, the NFL may be in violation of antitrust laws. This Note begins by explaining antitrust …

The "Strong Medicine" Of The Overbreadth Doctrine: When Statutory Exceptions Are No More Than A Placebo, Christopher A. Pierce

Federal Communications Law Journal

In United States v. Stevens, the United States Supreme Court invalidated a federal statute criminalizing the interstate sale and distribution of depictions of animal cruelty on First Amendment grounds. While Stevens demonstrates the Court's reluctance to create a new category of speech outside of First Amendment protection, Stevens also stands for the proposition that borrowing the exceptions clause from the Court's obscenity standard will not adequately protect a statute from invalidation as overbroad. This Note discusses the use of the obscenity standard's exceptions clause in nonobscenity statutes and the Court's treatment of the exceptions clause in Stevens. This Note concludes …

How Elevation Of Corporate Free Speech Rights Affects Legality Of Network Neutrality, Barbara A. Cherry

Federal Communications Law Journal

In Citizens United v. Federal Election Commission (2010), the U.S. Supreme Court overruled a century of precedent to hold that corporations must be treated identically to natural persons with regard to political speech. This Article describes how the Court's decision is a radical departure from history that mirrors the FCC's flawed analysis in its classification of broadband Internet access services as an information service with no separable telecommunications component subject to common carriage regulation. Overall, the combinatorial effect of Citizens United and the FCC's classification of broadband access service as an information service is to elevate the constitutional free speech …

A Policy Framework For Spectrum Allocation In Mobile Communications, T. Randolph Beard, George S. Ford, Lawrence J. Spiwak, Michael Stern

Federal Communications Law Journal

With the National Broadband Plan's promise of an additional 500 MHz of spectrum for commercial purposes, the question of how to allocate those resources among competing uses and users will dominate the communications policy debate over the coming years. In this Article, the Authors provide a theoretical analysis of some of the relevant tradeoffs involved in allocating spectrum among service providers, with a particular focus on incumbent exclusion rules such as spectrum caps. Two key assumptions center the analysis: (i) more firms implies lower prices (i.e., Cournot competition); and (ii) more spectrum permits more advanced services due to greater capacity …

Wikileaks Would Not Qualify To Claim Federal Reporter’S Privilege In Any Form, Jonathan Peters

Federal Communications Law Journal

This Article addresses whether WikiLeaks could claim a federal reporter's privilege if the U.S. government or a U.S. entity tried to compel one of the site's staff members to disclose the source(s) of any documents it has released. After exploring the origins of the First Amendment-based privilege, the Author argues that WikiLeaks would not be able to claim it. First, the website does not engage in investigative reporting. Second, it has not taken steps consistently to minimize harm. He also discusses congressional attempts to pass a federal shield law, paying special attention to H.R. 985 and S. 448, the two …

International Media Law Reform And First Amendment Agnosticism: Review Of Lee Bollinger’S Uninhibited, Robust, And Wide-Open: A Free Press For A New Century, Enrique Armijo

Federal Communications Law Journal

Lee Bollinger's Uninhibited, Robust, and Wide-Open argues that in an increasingly globalized world, the United States must seek to export First Amendment free press principles to other countries. His project, however, is belied by the fact that media law is a product of context and history as much as legalism. His proposals for reconceptualizing our own animating vision for a free press here in the States are also in many important respects inconsistent with the First Amendment itself.

Overwhelmed By Big Consolidation: Bringing Back Regulation To Increase Diversity In Programming That Serves Minority Audiences, Caridad Austin

Federal Communications Law Journal

This Note addresses diversity in the media and the need for regulation that will enhance programming so that it is inclusive of minority audiences. It begins by analyzing the historical development of diversity in the media through landmark cases, such as Metro Broadcasting, Inc. v. Federal Communications Commission, and it addresses the consolidating effects of the Telecommunications Act of 1996 and the FCC's 2003 Report and Order. It argues that despite technological growth, the FCC's open market regulatory approach of the last three decades has resulted in a lack of diverse perspectives in the media and that the FCC needs …

Resilience: Building Better Users And Fair Trade Practices In Information, Andrea M. Matwyshyn

Federal Communications Law Journal

Symposium: Rough Consensus and Running Code: Integrating Engineering Principles into Internet Policy Debates, held at the University of Pennsylvania's Center for Technology Innovation and Competition on May 6-7, 2010.

In the discourse on communications and new media policy, the average consumer-the user-is frequently eliminated from the equation. This Article presents an argument rooted in developmental psychology theory regarding the ways that users interact with technology and the resulting implications for data privacy law. Arguing in favor of a user-centric construction of policy and law, the Author introduces the concept of resilience. The concept of resilience has long been discussed in …

Rough Consensus And Running Code: Integrating Engineering Principles Into Internet Policy Debates, Christopher S. Yoo

Federal Communications Law Journal

Symposium: Rough Consensus and Running Code: Integrating Engineering Principles into Internet Policy Debates, held at the University of Pennsylvania's Center for Technology Innovation and Competition on May 6-7, 2010.

Wireless Efficiency Versus Net Neutrality, Charles L. Jackson

Federal Communications Law Journal

Symposium: Rough Consensus and Running Code: Integrating Engineering Principles into Internet Policy Debates, held at the University of Pennsylvania's Center for Technology Innovation and Competition on May 6-7, 2010.

This Article first addresses congestion and congestion control in the Internet. It shows how congestion control has always depended upon altruistic behavior by end users. Equipment failures, malicious acts, or abandonment of altruistic behavior can lead to severe congestion within the Internet. Consumers benefit when network operators are able to control such congestion. One tool for controlling such congestion is giving higher priority to some applications, such as telephone calls, and …