Communications Law Commons^™

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.

The Year In Economics At The Fcc, 2010-11: Protecting Competition Online, Jonathan Baker, Mark Bykowsky, Patrick Degraba, Paul Lafontaine, Eric Ralph, William Sharkey

Articles in Law Reviews & Other Academic Journals

The past year in economics at the Federal Communications Commission focused on protecting competition in developing online markets. Our review discusses important economic issues that are raised by the FCC’s Open Internet rulemaking (which is commonly referred to as “net neutrality”) and its review of Comcast’s programming joint venture with General Electric’s NBC Universal affiliate. The Open Internet rule focused on established online markets, while the Comcast/NBCU transaction addressed nascent competition online along with competition in video programming and distribution offline.

Lessons From The Nextwave Saga: The Federal Communications Commission, The Courts, And The Use Of Market Forms To Perform Public Functions, Rodger Citron, John Rogovin

Rodger Citron

No abstract provided.

Television For All: Increasing Television Accessibility For The Visually Impaired Through The Fcc's Ability To Regulate Video Description Technology, Joshua S. Robare

Federal Communications Law Journal

Video descriptions allow people who have visual impairments to get the full benefits from television. Through voiceovers those who have problems seeing are told what is happening on screen allowing them to get the most out of viewing television. However, the Federal Communications Commission currently lacks the authority to require broadcasters to create video descriptions for their programs following the decision in Motion Picture Association of America, Inc. v. Federal Communications Commission. This situation contrasts with closed caption which allows viewers with hearing problems read the dialog being said on screen. The FCC retained the power to regulate closed captions …

The Limitations And Admissibility Of Using Historical Cellular Site Data To Track The Location Of A Cellular Phone, Aaron Blank

Richmond Journal of Law & Technology

Imagine someone has just committed a crime. Shortly thereafter, law enforcement responds and quickly apprehends a suspect on the scene or close by. In order to prove guilt beyond a reasonable doubt, the time and place of apprehending the suspect, combined with witness testimony or physical evidence, may be enough for the prosecution to meet its burden of proof.

Plan B For Campaign-Finance Reform: Can The Fcc Help Save American Politics After Citizens United?, Lili Levi

Articles

No abstract provided.

Pacifica Reconsidered: Implications For The Current Controversy Over Broadcast Indecency, Angela J. Campbell

Federal Communications Law Journal

In 2009, the Supreme Court upheld the FCC's finding in Fox TV Stations v. Federal Communications Commission that the broadcast of "fleeting expletives" violated a federal law prohibiting the broadcast of indecency, but remanded the case for consideration of the broadcast networks' claims that the FCC action violated the First Amendment. On remand, the Second Circuit found that the FCC's prohibition against "fleeting expletives" was unconstitutionally vague. It is widely expected that the Supreme Court will review this decision and that the networks will ask the Court to reconsider its 1978 decision in Pacifica Foundation v. Federal Communications Commission. This …

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 …

From One [Expletive] Policy To The Next: The Fcc's Regulation Of "Fleeting Expletives" And The Supreme Court's Response, Brandon J. Almas

Federal Communications Law Journal

After the broadcast of the 2003 Golden Globe Awards, during which the lead singer from U2 uttered an expletive on national television, the FCC revisited its prior policy on the use of expletives on the airwaves and declared, for the first time, that "fleeting expletives" are offensive according to community standards and are therefore finable. In a lawsuit filed in the Second Circuit Court of Appeals, Fox Television Stations, Inc. along with a number of other broadcasters argued that the FCC's new policy was arbitrary and capricious under the Administrative Procedure Act and unconstitutional under the First Amendment. The Second …

Examining The Fcc's Indecency Regulations In Light Of Today's Technology, Elizabeth H. Steele

Federal Communications Law Journal

Indecency regulations promulgated by the FCC used to be effective, but today's technological advances call those regulations into question. With the prevalence of digital video recorders and the availability of television shows on the Internet, children have unprecedented access to material broadcast at all times of day. As a result, the "safe harbor" rationale restricting the broadcast of indecent material no longer makes sense. A move toward deregulation is the most logical step to take, as it would prevent any First Amendment violations and would allow the networks freedom to broadcast material that the public may be interested in without …

Fcc V. Fox Television Stations And The Fcc's New Fleeting Expletive Policy, Jerome A. Barron

Federal Communications Law Journal

This Article focuses on the Supreme Court's decision in FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009). In that case, the Supreme Court upheld an important change in the FCC indecency regulation. In the past, the FCC's policy had been that the broadcast of a single expletive did not violate FCC indecency policy. In order for such fleeting expletives to be actionable, the FCC required that they had to be repetitive and gratuitous. But in 2004, in response to the use of some expletives by entertainers during the Golden Globe Awards, the FCC changed its policy and …

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 …

A "Pay Or Play" Experiment To Improve Children's Educational Television, Lili Levi

Federal Communications Law Journal

This Article addresses both the constitutionality and the efficacy of the FCC's current rules that require broadcasters to air children's educational programming. It argues that, even though the rules would probably pass muster under the First Amendment, they should nevertheless be substantially revised.

Empirical studies show mixed results, with substantial amounts of educationally insufficient programming. This is predictable-attributable to broadcaster incentives, limits on the FCC's enforcement capacities, and audience factors. Instead, the Article advises a turn away from programming mandates. It proposes a "pay or play" approach that allows broadcasters to pay a fee to a fund for high-quality public …

Creating Effective Broadband Network Regulation, Daniel L. Brenner

Federal Communications Law Journal

The Internet is central to the business and pastimes of Americans. Calls for increased regulation are ongoing, inevitable, and often justified. But calls for "network neutrality" or "nondiscrimination" assume with little hesitation federal agency competence to give predictable and accurate meaning to these terms and create regulations to implement them. This Article's chief contribution to Internet policy debate is to focus attention on the likelihood of successful FCC Internet regulation-a key assumption of some advocates.

The Article analyzes three characteristics that hobble the FCC, which is the likeliest federal agency to provide prescriptive rules. First, the record for the agency …

A "Pay Or Play" Experiment To Improve Children's Educational Television, Lili Levi

Articles

No abstract provided.

The Fcc's Affirmative Speech Obligations Promoting Child Welfare, Lili Levi

Articles

No abstract provided.

Unlocking The Wireless Safe: Opening Up The Wireless World For Consumers, Adam Clay

Federal Communications Law Journal

Facing resistance to the use of its Voice-over-Internet Protocol application on mobile phones, in February 2007, Skype Communications filed a petition with the FCC asking for application of the Carterfone standards to the wireless phone industry. This Note discusses Carterfone and the merits of Skype's petition in light of the recent auction of the C Block, which carries open network requirements, and developments in wireless technology. This Note argues that the FCC should require carriers to provide technical standards for access to their networks, whereby individuals will be able to connect any approved device and application of their choosing.

An Evaluation Of The Proposals In The Fcc's Intercarrier Compensation Reform Docket Related To Tandem Transit Services, John R. Harrington, Ronald W. Gavillet, Matt D. Basil, Melissa L. Dickey

Federal Communications Law Journal

As part of its Intercarrier Compensation Reform Docket, the Federal Communications Commission (FCC) has received many proposals advocating for the adoption of regulations relating to tandem transit services. As transiting affects virtually every carrier in the telecommunications industry, including traditional CLECs, cable telephony providers, wireless carriers, and even traditional ILECs, the industry is sharply divided over which, if any, of those proposals should be adopted. This Article provides an in-depth look at the issues dividing the industry, and the various proposals before the FCC. The Authors then hypothesize that the FCC should follow the lead of several state commissions who …

Paying The Price For Sports Tv: Preventing The Strategic Misuse Of The Fcc's Carriage Regulations, David Hutson

Federal Communications Law Journal

Cable companies and sports leagues have embarked upon parallel courses of vertical integration by creating and acquiring interests in cable sports networks. Cable companies carry regional sports networks (RSNs) on basic cable tiers. Some league-owned networks have sought high prices for carriage on basic tiers, causing some cable companies to balk because of the price increase they would have to pass on to consumers. The 1992 Cable Act prohibits cable companies from discriminating in carriage terms between affiliated and nonaffiliated networks. Cable companies that own RSNs are, therefore, left vulnerable to discrimination complaints by league-owned networks. This Note argues that …

Viewpoint Diversity And Media Consolidation: An Empirical Study, Daniel E. Ho, Kevin M. Quinn

Faculty Articles

One of the central predicates of legal regulation of media ownership is that ownership consolidation reduces substantive viewpoint diversity. Appellate courts and, in turn, the Federal Communications Commission have increasingly demanded evidence for this convergence hypothesis, but extant empirical measures of viewpoint diversity sidestep the problem, ignoring diversity, viewpoints, or both. Our Article develops and offers a finely tuned, time-varying statistical measure of editorial viewpoint diversity, based on a new database of over 1600 editorial positions in twenty-five top newspapers from 1988-2004. Using this new measure, we assess the validity of the convergence hypothesis by examining the evolution of editorial …

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 …

Will Access Regulation Work?, Gerald R. Faulhaber

Federal Communications Law Journal

"The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective."' Conference held at the University of Pennsylvania Law School on April 18-19, 2008.

The FCC is transitioning from a rate regulation regime to an access regime. A rate regulation regime gives all customers full access to network facilities (common carrier) at regulated rates-generally, rate base rate of return regulation. An access regime is one in which all competitors are given full access to incumbents' networks, with little or no retail rate regulation, thereby allowing competition (over incumbents' networks) to discipline the market. Is this a good idea? Is …

Reexamining The Legacy Of Dual Regulation: Reforming Dual Merger Review By The Doj And The Fcc, Philip J. Weiser

Federal Communications Law Journal

"The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective."' Conference held at the University of Pennsylvania Law School on April 18-19, 2008.

A central challenge for competition policy merger review is to structure the analysis of merger remedies so that the antitrust agencies play an effective and central role, with regulatory agencies complementing-as opposed to overlapping or contradicting--their judgments. At present, the U.S. system sometimes veers towards a worst-case scenario where federal antitrust authorities-the FTC and DOJ-impose regulatory remedies that overlap with regulatory policy and regulatory agencies perform duplicative merger reviews and impose remedies unrelated to the …

"Fleeting Expletives" Are The Tip Of The Iceberg: Fallout From Exposing The Arbitrary And Capricious Nature Of Indecency Regulation, Dave E. Hutchinson

Federal Communications Law Journal

On November 4, 2008, the Supreme Court heard arguments in FCC v. Fox Television Stations, which centers on whether or the FCC's policy allowing fleeting expletives to be found actionably indecent is arbitrary and capricious. The Second Circuit found that the fleeting expletives policy is arbitrary and capricious as a matter of administrative law. The Supreme Court decision will provide much needed guidance for what constitutes a reasoned basis in the indecency regime's contextual approach. This Note argues that--despite the FCC's recognition that time and context changes the meaning of language-the FCC's indecency regime is at loggerheads with broadcasters because …

When The Flock Ignores The Shepherd-Corralling The Undisclosed Use Of Video News Releases, Jeffrey Peabody

Federal Communications Law Journal

Every time you sit down to watch the evening news, you see not only locally produced stories, but also pre-packaged, corporate-sponsored "video news releases" ("VNRs") that are nothing more than commercials in disguise. Unlike political advertising, which must comply with strict sponsorship identification rules, these VNRs remain unregulated. This Note discusses the failed "Truth in Advertising Act," and proposes mandatory disclosure and beefed-up enforcement as necessary steps in stemming the growing use of these "fake news" spots

Carl Ramey's Mass Media Unleashed, Henry Geller

Federal Communications Law Journal

Book Review: Carl R. Ramey, Mass Media Unleashed: How Washington Policy Makers Shortchanged the American Public (2007).

This superb book treats an important issue: the proper regulatory policy for broadcasting in the twenty-first century. In it, Carl Ramey critiques the Federal Communications Commission's public trustee and deregulatory market policies and suggests that to meet the dynamic market and technological changes of this new century we should, among other things, free commercial broadcasters completely from public trustee requirements and eliminate FCC enforcement of its ownership and related rules. Based on the long experience of a communications lawyer who knows so well …

Reassessing Turner And Litigating The Must-Carry Law Beyond A Facial Challenge, R. Matthew Warner

Federal Communications Law Journal

In recent decades, the must-carry rules have had a troubled constitutional history. After two sets of rules were struck down by the D.C. Circuit for violating the First Amendment rights of both cable programmers and operators, Congress revised the must-carry rules in the 1992 Cable Act. In 1997, the Supreme Court, in a 5-4 decision, determined that the congressional must-carry law was facially constitutional. However, does the Turner II decision preclude further First Amendment challenges to the must-carry law? This Note argues that the answer is no and that the time is drawing near for new challenges.

Hidden Costs Of The Wireless Broadband Lifestyle: Comparing Consumer Protections In The United States, Canada, And The European Union, Renee Dopplick

Richmond Journal of Law & Technology

Spurred by relatively inexpensive and widely available retail equipment and increased residential Internet penetration, consumer demand for more wireless broadband options continues at a rapid rate. Now, with consumers increasingly looking for mobile Internet interconnectivity over greater distances and with greater flexibility, technology companies are pushing the next generation of wireless broadband technologies with the promise of freeing consumers from location-based Internet access. These newer technologies can provide robust video and audio capabilities, such as digital television, on-demand video, and VoIP on a variety of digital devices. Yet, the rise of wireless

broadband networks and the roll-out of new technologies …