Communications Law Commons^™

Internet: Taxar Ou Não Taxar?, Ivo T. Gico

Ivo Teixeira Gico Jr.

O artigo demonstra a opinião do autor acerca de manifestações sobre tributação da internet, sustentando o potencial nocivo à democratização da informação. The article demonstrates the author's opinion about taxing the Internet and its potential harm to the democratization of information.

Editor's Note, Meggan L. Frye

Federal Communications Law Journal

No abstract provided.

Financing Telecommunications Projects In Asia: A Promising Regulatory Perspective, Rachelle B. Chong, Wendy Chow

Federal Communications Law Journal

Asia's telecommunications market has long been viewed as lucrative and fast growing. As the benefits of a competitive telecommunications market become apparent, many Asian governments recognize that global corporations require, and in fact demand, state-of-the-art telecommunications infrastructure. After several years of strong growth, however, the severe economic crisis that affected all industry segments in Asia caused investors to pause and reevaluate the risks involved in financing infrastructure projects. Despite the recent Asian economic crisis, the overall picture for Asian telecommunications infrastructure projects remains promising. Asian governments continue to liberalize their regulatory schemes, thus reducing regulatory and political risks to investors. …

Privatization And The Freedom Of Information Act: An Analysis Of Public Access To Private Entities Under Federal Law, Craig D. Feiser

Federal Communications Law Journal

Congress drafted the Freedom of Information Act to ensure that the public would always be able to keep track of the events happening behind governmental agency doors. In an age of privatization of governmental services in the name of efficiency, the Act needs to be adapted to ensure that its original purpose remains sound. Thus far, courts have not kept pace with this purpose by interpreting agency and agency record under the Act too narrowly. This may very well result in government secrecy as services are farmed out to entities not covered under the Act. This Article analyzes the various …

The Battle For Portland, Maine, L. Andrew Tollin

Federal Communications Law Journal

In 1985, when the FCC began the competitive process of deciding who would be licensed to provide cellular telephone service to Portland, Maine, chaos and irony reigned. Thirteen years later, after a bitter legal battle among local telephone companies, a provider was finally selected. At one point or another, all three branches of government became involved. The license itself changed hands three times during the case and, in essence, three different telephone systems were constructed. Ultimately, the case was decided on the basis of whether the FCC complied with a preexisting federal law, the Paperwork Reduction Act, in adopting the …

Cable Internet Unbundling: Local Leadership In The Deployment High Speed Access, Marcus Maher

Federal Communications Law Journal

With the pending merger of TCI and AT&T and their promise of "one-stop" television, Internet, and telephone service, the cable Internet issues move to the forefront. The desire of traditional Internet Service Providers to gain access to new high-speed technologies for Internet access led to requests for unbundling or open access to cable systems. Despite the heated debate on the need for unbundling that has occurred at the federal level, local authorities have taken the lead in requiring open access to cable for competing ISPs. General anticompetitive concerns with cable Internet dominated by the cable company could be alleviated in …

Masthead Vol.52 No.1 (1999)

Federal Communications Law Journal

No abstract provided.

Shrinkwrap And Clickwrap Agreements: 2b Or Not 2b?, Garry L. Founds

Federal Communications Law Journal

Several problems plague typical mass-market software licensing agreement, specifically that the public is powerless to negotiate and the terms often are perceived as exceedingly broad and restrictive. The Uniform Computer Information Transactions Act is designed to remedy those problems and establish the general enforceability of such agreements, with certain qualifications related to unconscionability, assent, and other caveats. UCITA, however, does not resolve, or even purport to resolve, the tension between federal copyright law and state contract law. This Note analyzes UCITA's attempt to resolve the enforceability issue; argues for an approach to preemption that promotes clarity and preserves the objectives …

Strike Two: An Analysis Of The Child Online Protection Act’S Constitutional Failures, Heather L. Miller

Federal Communications Law Journal

Congress's first attempt to regulate minors' access to sexually explicit material via the Internet failed. Congress responded with the Child Online Protection Act, which, despite its narrower scope, cannot withstand constitutional scrutiny. This Notes delves into the constitutionality of Congress's second attempt by addressing the difficulty of applying the vague "harmful to minors" definition to the Internet medium and the economic and technological unavailability of the Act's affirmative defenses. This Note concludes with an explanation as to why legislation is an ineffective mechanism to address the problem of minors' access to online pornography.

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 …

The Constitutionality Of The Driver’S Privacy Protection Act: A Fork In The Information Access Road, Angela R. Karras

Federal Communications Law Journal

The Driver's Privacy Protection Act, instituted in 1997, regulates the disclosure of personal information in motor vehicle records. New controversy surrounds it today as the U.S. Supreme Court evaluates the arguments presented in November 1999 regarding its constitutionality. A split among circuit courts, coupled with the tremendous growth in technology and subsequent new in-roads for information access, draw increased attention toward the Act. The concern for information access in light of the Act, however, reaches beyond the courts' elucidated concerns about dual sovereignty and the public's right to privacy. This Note argues that there is a forgotten argument: the Act's …

Zoning Speech On The Internet: A Legal And Technical Model, Lawrence Lessig, Paul Resnick

Michigan Law Review

Speech, it is said, divides into three sorts - (1) speech that everyone has a right to (political speech, speech about public affairs); (2) speech that no one has a right to (obscene speech, child porn); and (3) speech that some have a right to but others do not (in the United States, Ginsberg speech, or speech that is "harmful to minors," to which adults have a right but kids do not). Speech-protective regimes, on this view, are those where category (1) speech predominates; speech-repressive regimes are those where categories (2) and (3) prevail. This divide has meaning for speech …

The Virtual Wild, Wild West (Www): Intellectual Property Issues In Cyberspace—Trademarks, Service Marks, Copyrights, And Domain Names, Jeffrey J. Look

University of Arkansas at Little Rock Law Review

No abstract provided.

Equality In The Information Age, William E. Kennard

Federal Communications Law Journal

Forum: New Approaches to Minority Media Ownership, Columbia Institute for Tele-Information, Columbia University.

Equity Pooling And Media Ownership, Peter Chinloy

Federal Communications Law Journal

This Article outlines a method of pooling equity for acquiring a portfolio of media properties. Each participant receives a security containing an investment return and a management right. The management right goes only to one successful bidder, offering a cash payment to other investors as an access price. By offering repeat bidding on several properties, different members of a pool achieve ownership while diversifying their risk. Alternatively, an investor not wishing management receives a higher compensating return. The procedure is particularly suited to media properties dependent on local advertising such as radio, "free" community newspapers, and television outlets. These properties …

Private Equity Funding For Minority Media Ownership, Vance H. Fried

Federal Communications Law Journal

This Article details the importance of private equity financing to all sizes and types of media companies. Much of the rapid growth of the Internet has been financed by private equity. The private equity market is an important source of funds for minority media companies. It is a large market, able to meet a variety of financing needs. However, the minority media entrepreneur must realize that this is strictly a profit-oriented investment market. The same investment process and criteria will be applied to minority media proposals as will be applied to non-minority media proposals. This process may present some problems …

The Digital Dilemma: Ten Challenges Facing Minority-Owned New Media Ventures, Marcelino Ford-Livene

Federal Communications Law Journal

Minority-owned companies competing in print publishing, radio, broadcast television, cable, and telecommunications industries have had no shortage of challenges, setbacks, and failures. Minority-owned companies are struggling to stake a claim in the new media frontier. Some challenges they face are unique to the underlying technology, uncertainty, and international reach of the Web. There should be a sense of urgency with respect to minority participation on the Web. If the promise of broadband leads to new media outlets that are profitable and more dynamic than traditional media, then minorities cannot afford to be left out.

Forum: New Approaches to Minority Media …

Use Of Designated Entity Preferences In Assigning Wireless Licenses, Thomas W. Hazlett, Babette E.L. Boliek

Federal Communications Law Journal

The FCC is mandated to distribute wireless licenses quickly, efficiently, and to a diverse group of licensees. This Article examines the social costs and benefits associated with designated entity preference programs implemented in conjunction with FCC license auctions. The Authors focus on the auctions of licenses for Regional Narrowband Personal Communications and Personal Communications Services C block, finding that while the benefits to designated entity applicants are bid away in the auction process, substantial costs to consumers have accrued from lengthy delays in designate entity license assignments.

Forum: New Approaches to Minority Media Ownership, Columbia Institute for Tele-Information, Columbia University.

Measuring The Nexus: The Relationship Between Minority Ownership And Broadcast Diversity After Metro Broadcasting, Allen S. Hammond, Iv

Federal Communications Law Journal

In Metro Broadcasting, Inc. v. FCC, the Court found a nexus between minority ownership and diversity of viewpoint. The recent Lutheran Church-Missouri Synod v. FCC decision dismissed the government’s arguments that a nexus exists between minority employment in broadcast stations and greater diversity in broadcast programming, and that the government has an interest in fostering such diversity. Given the challenge of the Lutheran Church opinion and potentially significant changes in the regulation and operation of the broadcast market, sole reliance on Metro Broadcasting’s holdings may be ill advised and a new study documenting the continued existence of the …

The Fcc’S Minority Tax Certificate Program: A Proposal For Life After Death, Erwin G. Krasnow, Lisa M. Fowlkes

Federal Communications Law Journal

In 1995, Congress eliminated the Federal Communications Commission’s (FCC) Minority Tax Certificate Program—a nonintrusive method of encouraging increased participation of minority entrepreneurs as owners in the broadcast and cable industries. Since that time, minorities have faced increased difficulties competing in all facets of the communications industry. These difficulties can be attributed to: (1) increased consolidation within the broadcast industry as a result of provisions of the Telecommunications Act of 1996 relaxing certain broadcast ownership limitations; (2) recent court decisions adverse to minority-specific programs; and (3) continued obstacles faced by minorities in accessing sufficient capital to acquire licenses and compete in …

The Value Of The Tax Certificate, Kofi Asiedu Ofori, Mark Lloyd

Federal Communications Law Journal

Tax certificates are an example of successful incentive regulation. Prior to its repeal in 1995, section 1071 of the Internal Revenue Code permitted the tax-free sale or exchange of media properties to effectuate policies of the Federal Communications Commission. Enacted by Congress in 1943, this provision was originally used to soften the hardship created by involuntary sales of broadcast properties made necessary to reduce ownership concentration in the radio industry. In 1978, the tax certificate was used to promote goals to increase minority ownership of a variety of communications properties. This Article discusses the "value" of tax certificates as a …

Investment In Minority-Owned Media: A Social Investor’S Perspective, Lloyd Kurtz

Federal Communications Law Journal

Access to capital for minority media remains problematic in the pension and mutual fund world, even among those organizations that practice "socially responsible" investing. The reasons for this include the behavior traits of all institutional investors and the relatively undeveloped state of socially responsible investing. However, modern social research suggests that large media conglomerates, such as Disney, Time-Warner, and Viacom, might be potentially approachable sources of capital for minority media.

Forum: New Approaches to Minority Media Ownership, Columbia Institute for Tele-Information, Columbia University.

Editor's Note, Malcolm J. Tuesley

Federal Communications Law Journal

No abstract provided.

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

Federal Communications Law Journal

No abstract provided.

Legal Opinions In Corporate Transactions Affected By Fcc Regulation: An Economic Approach, John C. Quale, Brian D. Weimer

Federal Communications Law Journal

In 1996, a subcommittee of the Federal Communications Bar Association published a report on legal opinion practice in corporate transactions involving FCC licensees (the FCBA Report). The FCBA Report, although inspired by the American Bar Association’s Legal Opinion Accord and Guidelines (the Accord), deviated from the Accord in many important respects. The FCBA Report likewise is at variance with the recent report of the TriBar Opinion Committee (the TriBar Report), which presents a comprehensive treatment of customary legal opinion practice. Given recent developments in case law expanding the liability of lawyers to third parties for their …

Self-Regulation And The Media, Angela J. Campbell

Federal Communications Law Journal

Self-regulation has been portrayed as superior to government regulation for addressing problems of new media such as digital television and the Internet. This Article reviews the literature on self-regulation to define what is meant by the term, to identify the purported advantages and disadvantages of self-regulation, and to identify the conditions needed for its success. It then analyzes the effectiveness of self-regulation by examining instances where self-regulation has been employed in connection with media. After describing and analyzing past uses of self-regulation in broadcasting, children’s advertising, news, alcohol advertising, comic books, movies, and video games, this Article concludes that self-regulation …

Masthead Vol.51 No.3 (1999)

Federal Communications Law Journal

No abstract provided.

The Copyright Dilemma Involving Online Service Providers: Problem Solved . . . For Now, Christian C.M. Beams

Federal Communications Law Journal

The Internet environment has presented copyright law with a development unlike any other this century. The illegal trading of copyrighted works has become easier than ever. Until recently, it was possible to hold online service providers strictly liable for the infringing actions of their users, regardless of whether the provider had knowledge of any infringing activity. While promoting the policy of copyright law, upholding such a standard had the potential to limit Internet speech and retard its growth. Seeing this, Congress began to debate on legislation that would protect innocent service providers from this liability. This Note argues that with …

Private Property, Economic Efficiency, And Spectrum Policy In The Wake Of The C Block Auction, Brian C. Fritts

Federal Communications Law Journal

In the original spectrum auctions of Personal Communications Services, the FCC designated a portion of the spectrum for woman and minority-owned small businesses (the C block). The Supreme Court’s decision in Adarand v. Pena caused the FCC to redesign the auction with the result that many bidders overvalued this spectrum. Due to this overvaluation, many bidders could not meet their obligations to the FCC. This Note analyzes FCC auction history, the FCC’s response to the original C block auction, how to fix these problems within the given congressional and FCC framework, and argues that the best solution would be to …

Not In My Backyard: The Siting Of Wireless Communications Facilities, Malcolm J. Tuesley

Federal Communications Law Journal

Given the increasing prominence of wireless communications within the broader realm of technological advancement, the deployment of a national infrastructure capable of meeting the demands of PCS is critical. The Telecommunications Act of 1996 takes substantial steps to ensure the expeditious deployment and ultimate success of such technology. The spur of the 1996 Act is necessary to bring otherwise disinterested communities to the table with providers. While the 1996 Act greatly enhances the position of service providers as they deal with local communities, education and cooperation between federal, state and local governments, and service providers offer the greatest potential for …