Communications Law Commons^™

Social Checks And Balances: A Private Fairness Doctrine, Michael P. Vandenbergh

Vanderbilt Law Review

This Essay proposes a private standards and certification system to induce media firms to provide more complete and accurate information. It argues that this new private governance system is a viable response to the channelized flow of information that is exacerbating political polarization in the United States. Specifically, this Essay proposes development of a new private fairness doctrine to replace the standard repealed by the Federal Communications Commission in 1987. A broad-based, multi-stakeholder organization could develop and implement this private fairness doctrine, and the certification process could harness market and social pressure to influence the practices of traditional and new …

The Transparency Tax, Andrew K. Woods

Vanderbilt Law Review

Transparency is critical to good governance, but it also imposes significant governance costs. Beyond a certain point, excess transparency acts as a kind of tax on the legal system. Others have noted the burdens of maximalist transparency policies on both budgets and regulatory efficiency, but they have largely ignored the deeper cost that transparency imposes: it constrains one’s ability to support the law while telling a self-serving story about what that support means. Transparency’s true tax on the law is the loss of expressive ambiguity.

In order to understand this tax, this Article develops a taxonomy of transparency types. Typically, …

On The Effective Communication Of The Results Of Empirical Studies, Part Ii, Lee Epstein, Andrew D. Martin, Matthew M. Schneider

Vanderbilt Law Review

In an important and certainly timely article published in the N.Y. U. Law Review, Nancy C. Staudt demonstrates that, in taxpayer standing cases, judges are motivated by politics but can be constrained when the law is clear and oversight exists. As part of that demonstration, Professor Staudt offers an empirical analysis of the decision to grant standing to federal taxpayers-the results of which we reproduce in Table 1.2

What are we to make of this rather ominous-looking table? Professor Staudt suggests two key takeaways. First, the analysis, she reports, shows that doctrine helps explain standing decisions even when political factors …

"Chevron," Cooperative Federalism, And Telecommunications Reform, Philip J. Weiser

Vanderbilt Law Review

In this Article, Professor Weiser argues that the advent of cooperative federalism statutes, like the Telecommunications Act of 1996, calls for a new conception of federal court review of state agency decisions. In particular, Professor Weiser suggests that federal statutes that invite state agencies to interpret federal law subject only to federal court review should be interpreted as calling for a deferential standard of review. Such a standard, to be sure, would allow cooperative federalism statutes to mean different things in different states. But as Professor Weiser illustrates with reference to the Telecommunications Act, the very nature of cooperative federalism …

Broadcasters' First Amendment Rights: A New Approach?, L. Allyn Dixon, Jr.

Vanderbilt Law Review

The passage of the Public Broadcasting Act of 1967 offered the blueprint for the modern system of public broadcasting and regulation and largely freed noncommercial broadcasting to become a viable alternative to the commercial broadcasting" offered by the three national networks. Since becoming intimately involved in noncommercial broadcasting by providing partial funding, the federal government has imposed regulations on noncommercial broadcasters far more rigid than the restrictions imposed on commercial broadcasters. Recently, however, in a decision that some might regard as heralding greater equality between the first amendment rights of commercial and noncommercial broadcasters and continuing the trend toward loosening …

Global Governance Of Global Networks: A Survey Of Transborder Data Flow In Transition, Anne W. Branscomb

Vanderbilt Law Review

This Article's examination of the development of the international system of information exchange limits its inquiry to transnational transport of computer generated and machine readable digital data via electronic transmission. This definition includes voice,image, characters, and other symbols transported by satellite, microwave, cable, or conventional radio in a converged digital bitstreams that does not discriminate between types of communications services. These delivery systems now are called integrated services digital networks (ISDNs) The last part of the Article examines the legal environment in which these networks currently are developing.

Federal And State Roles In Telecommunications: The Effects Of Deregulation, Eli M. Noam

Vanderbilt Law Review

During the past decade, federal telecommunications regulatory policy has changed its focus from a goal of universally available and affordable residential service to one of economic efficiency. In changing its regulatory focus, the federal government has indirectly deprived the states of the means to accomplish their goal, which remains one of insuring universally available and affordable residential service. In his Article Professor Noam examines the evolution of the traditional federal-state coregulatory system, contrasts the emerging federal regulatory approach with the states' policies, and discusses the reasons for federal predominance in telecommunications regulation.He argues that the reorientation in federal regulatory policy …

Independent Political Action Groups: New Life For The Fairness Doctrine, Charles D. Ferris, L. Gregory Ballard

Vanderbilt Law Review

During the past decade, independent political action committees (PACs) have grown dramatically as an alternative source of funding for political candidates. Congress and many commentators have expressed fear over the potential political power of these independent expenditure groups, which are not accountable to political parties. In their Article Messrs. Ferris and Ballard argue that the political broadcasting laws, particularly the Fairness Doctrine, serve as essential barriers to PACs' attempts to dominate the political process through unrestricted spending on political advertising. Although some critics have denounced the Fairness Doctrine, which requires broadcasters to provide balanced coverage of controversial issues, as outdated …

Cable Television's Emerging Two-Way Services: A Dilemma For Federal And State Regulators, Frank W. Lloyd

Vanderbilt Law Review

Cable television as an entertainment medium has been the subject of various federal, state, and local regulatory schemes since its inception in the 1950's. The introduction of nonvideo two-way cable services that provide a capacity for responsive data and voice transmission between users of the two-way system has renewed interest in the appropriate role of government in the regulation of two-way cable services. Telephone companies in particular have pressed state and federal regulators to identify cable two-way systems as common carriers and to impose on them two-way cable common carrier regulations. In this Article Mr. Frank Lloyd discusses actual and …

Antitrust Enforcement, Freedom Of The Press, And The "Open Market": The Supreme Court On The Structure And Conduct Of Mass Media, William E. Lee

Vanderbilt Law Review

This Article examines the Supreme Court's attempts to foster open markets by altering either the structure or the conduct of mass media enterprises." Structure and conduct are the two main determinants of market performance. Market structure "means those characteristics of the organization of a market that seem to exercise a strategic influence on the nature of competition and pricing within the market." Some characteristics of market structure include degree of buyer concentration, degree of seller concentration, degree of product differentiation, and entry conditions. Market conduct, on the other hand, comprises the practices, policies, and devices which firms employ in adjusting …

First Amendment Restrictions On The Ftc's, Robert D. Eckinger

Vanderbilt Law Review

The Supreme Court has suggested a "degree of protection"approach to reconcile the first amendment protection of commercial speech with the need to effectively regulate false or misleading advertising. In so doing, however, the Court has failed to establish clearly the judicial standard of review appropriate in examining regulative measures. In the absence of adequate guidance, several circuit court decisions have adopted an unjustified standard of strict judicial scrutiny. The continued use of this standard by the circuit courts in reviewing FTC decisions will present increasing institutional problems for the courts and will seriously undermine the Commission's ability to protect consumers …

The New Catv Rules: Proceed On Delayed Yellow, Roscoe L. Barrow

Vanderbilt Law Review

Elites largely govern our nation's current decision-making process.The average citizen's failure to participate in that process perhaps derives largely from his inability to inform himself adequately on all the issues. However, the ability of cable television (CATV) to place each person in complete command of his informational and entertainment environment has thrust society upon the threshold of an electronic communications revolution. Indeed, if CATV is allowed to develop its full potential, the individual will not have to receive information and entertainment passively. Rather, CATV's virtue of two-way communication will permit him to transmit as well as receive information. His access …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases --

Constitutional Law--Obscenity--Materials May Be Obscene for Minors without Being Obscene for Adults

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Constitutional Law--Standing-Federal Taxpayer Has Standing To Challenge Federal Expenditures Violating Specific Constitutional Prohibition

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Copyright--Telecommunication--CATY Carriage of Copyrighted Material Does not Constitute Infringement

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Criminal Law--Exclusion for Cause of Prospective Jurors With Scruples Against Death Penalty Violates Due Process

Communications Satellites--Progress And The Road Ahead, Bernard G. Segal

Vanderbilt Law Review

The declared policy of the United States is the establishment of a global system of communications satellites which will serve our needs and those of other countries, which will permit the participation of all nations, and which will contribute to world peace and understanding." Such a system, President Kennedy stated, is a vital element in the march of civilization. For lawyers to have a meaningful understanding of the developments in this new and important endeavor requires some understanding of the basic technology of communications satellites, of applicable legislation, and of the international problems involved. This article will attempt to present …

Corporate Law Department Communications--Privilege And Discovery, Thomas R. Hunt

Vanderbilt Law Review

With the growth in number and size of corporate law departments, there is increased interest in determining the conditions and areas in which their communications' may be called for, and used, in litigation. As business becomes more complex, requiring adherence to legislation and regulation which allows small tolerance between the licit and illicit, or demanding close attention to administrative detail, the role of the lawyer is amplified. Concurrently, corporate counsel is engaged in areas where the distinction between business and legal considerations becomes decreasingly apparent.

Privileged Communications--Some Recent Developments, Lloyd S. Adams Jr., Mary E. Polk

Vanderbilt Law Review

It is the purpose of this Note to collect and discuss some of the newer decisions construing and applying the rules of evidence as to certain privileged communications, with a view toward indicating possible trends and developments or limitations, if any, in this field of the law of evidence. It is limited primarily to communications between husband and wife, attorney and client, physician and patient, and priest and penitent, with a short discussion of the so-called "novel privileges." The assumption is made that the reader is familiar with generally accepted definitions of the various privileges, as well as traditional limitations.' …

Protection Of The Content Of Radio And Television Programs By Common Law Copyright, Harry P. Warner

Vanderbilt Law Review

Common law copyright has reference to an individual's "right in his original, unpublished, intellectual productions," which are protected via the common law. Common law copyright antedates the copyright statutes and can furnish the creative artist adequate and complete protection within limits. The common law rights are protected independently of the statute until the creative artist has permitted the contents of his work to be communicated generally to the public. As a matter of fact, section 2 of the Copyright Code expressly provides that statutory copyright will not annul or limit the enforcement of common law rights at law or in …