Law Commons^™

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 In March 2010, cable providers filed a Petition for Rulemaking with the FCC arguing that the current regulations are outdated and asking that the FCC alter the regulations to curb harmful negotiation tactics employed by broadcasters.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 …

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 …

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.

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 …

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 …

Restraining Amazon.Com's Orwellian Potential: The Computer Fraud And Abuse Act As Consumer Rights Legislation, Alicia C. Sanders

Federal Communications Law Journal

In 2009, Amazon.com decided to correct a potential copyright violation by deleting e-books by George Orwell and Ayn Rand from the Kindles of users who had already purchased the offending texts. Two of those users, Justin Gawronski and Antoine Bruguier, claimed that Amazon.com had violated the Computer Fraud and Abuse Act (CFAA) by accessing their Kindles without authorization. The plaintiffs also relied on other causes of action, including breach of contract and trespass to chattels. Although the dispute quickly settled, the Gawronski lawsuit remains a useful case study that shows why the CFAA is a useful protection for consumers. Recently, …

Behavioral Advertisement Regulation: How The Negative Perception Of Deep Packet Inspection Technology May Be Limiting The Online Experience, Andrea N. Person

Federal Communications Law Journal

Privacy concerns associated with information available on the Internet has become a central focus for policymakers in Washington, D.C., and around the world. Specifically, the use of deep packet inspection (DPI) technology to offer behavioral advertising on the Internet has become the focus of policy discussions. While there are legitimate concerns related to improper use of this technology, the benefits of the proper use of DPI should not be overlooked. This Note asks how increasing regulatory barriers to limit online behavioral advertising could affect the consumer's experience online. To answer this question, this Note first looks at what DPI is, …

Future Imperfect: Googling For Principles In Online Behavioral Advertising, Brian Stallworth

Federal Communications Law Journal

In a remarkably short time, Google, Inc. has grown from two people working in a rented garage to a pervasive Internet force. Much of Google's unprecedented success stems from online advertising sales which employ behavioral advertising techniques-techniques that track consumer behavior--thereby increasing relevance and decreasing the cost of reaching a targeted audience. In the same span that saw Google's inception and explosive online dominance, the Federal Trade Commission has struggled to define not only the privacy issues involved in online behavioral advertising, but also the practice of behavioral advertising itself. Freed from the restraints of comprehensive federal laws and restrictive …

Advancing Consumer Interests Through Ubiquitous Broadband: The Need For A New Spectrum, Meredith Attwell Baker

Federal Communications Law Journal

Comprehensive and long-term spectrum reform can play a critical role in the FCC's development of a National Broadband Plan and in its consideration of Open Internet rules. More efficient and intensive use of the nation's spectrum resources would help provide a path to greater broadband deployment, competition and innovation for all consumers. Wireless and mobile technologies hold great promise to offer consumers new services to complement, extend, or even replace existing broadband offerings. A comprehensive review of the nation's spectrum policy is, therefore, necessary to ensure that wireless and mobile broadband services are not hamstrung by outdated rules or command-and-control …

Universal Service In The United States: A Focus On Mobile Communications, Steven G. Parsons, James Bixby

Federal Communications Law Journal

The concept of universal service, providing affordable telecommunications to all citizens, has a long and changing history in the United States. Prior to the Telecommunications Act of 1996, efforts to achieve universal service were largely based on a complex web of implicit subsidies to basic landline local exchange residential service. The Act expanded and codified the concept of universal service and made the subsidies largely explicit. This Article evaluates the possible economic rationales for subsidizing voice communications and find them lacking. This Article argues that the weak rationale for subsidizing basic voice communications makes it critical that U.S. universal-service policy …

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.

Who Needs Tickets? Examining Problems In The Growing Online Ticket Resale Industry, Clark P. Kirkman

Federal Communications Law Journal

The Internet has dramatically changed the methods by which people purchase tickets to events. In the past decade, the secondary ticket market has grown exponentially, and today the online ticket resale industry is valued at approximately $4 billion. Although there are consumer benefits to this industry growth, some of the industry practices have precipitated a consumer backlash. This was typified in 2007 when many parents, hoping to purchase tickets to the Hannah Montana "Best of Both Worlds Tour," watched as tickets sold out online in only a few minutes or less. Coupled with this episode was the Ticketmaster v. RMG …

Leave Me Alone! The Delicate Balance Of Privacy And Commercial Speech In The Evolving Do-Not-Call Registry, Andrew L. Sullivant

Federal Communications Law Journal

In 2004, the Tenth Circuit held that although the newly enacted do-not-call registry restricted commercial speech, the restriction was narrowly tailored and thus fell within the bounds of the Constitution. Since that decision, the Federal Trade Commission has amended the do-not-call registry to abolish the provision that required individuals to re-register every five years, and in 2008, Congress passed the amendment. This Note argues that the five-year reregistration requirement is a substantial factor in the registry's narrow tailoring. By removing the requirement, questions as to the restriction's constitutionality reemerge.

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 …

Skating Toward Deregulation: Canadian Developments, Timothy J. Brennan

Federal Communications Law Journal

Canada had recently undertaken significant steps to forbear from regulating the last regulated offering in the telecommunications sector, local exchange service. Tests that Canada's telecommunications regulatory agency had imposed were overturned by order from the Canadian Cabinet Ministers. Notably, competitors to the incumbent local exchange carriers ("ILECs"), primary cable systems offering voice over Internet protocol ("VoW"') service, argued for the retention of regulation to prevent the ILECs from cutting price to customers who had switched to cable VoIP or were most likely to do so. We review here both the institutional developments leading to the forbearance decision and a number …

Direct Marketing, Mobile Phones, And Consumer Privacy: Ensuring Adequate Disclosure And Consent Mechanisms For Emerging Mobile Advertising Practices, Nancy J. King

Federal Communications Law Journal

Advertisers are poised to deliver advertising to cell phones in the U.S. This emerging advertising context is called mobile advertising. It will generate a host of privacy and personal data issues for consumers and for mobile advertisers, mobile phone manufacturers, and mobile carriers. This Article focuses on the existing federal regulatory environment applicable to mobile advertising and consumer privacy, the role of federal administrative agencies that enforce consumer privacy regulation, and the potential for industry selfregulation, particularly privacy policies, to enhance consumer privacy. It assesses the adequacy of the existing federal consumer privacy regulation as well as potential consumer remedies …

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.

In The Dark: A Consumer Perspective On Fcc Broadcast Indecency Denials, Genelle I. Belmas, Gail D. Love, Brian C. Foy

Federal Communications Law Journal

Indecency regulation has been a hot political and social topic since Janet Jackson revealed her breast during the 2004 Super Bowl halftime show. The number of indecency complaints the FCC receives each year continues to rise. Moreover, to further complicate matters, in 2007 the Second Circuit overturned the FCC policy that so-called "fleeting expletives" would be considered indecent. However, there has been no systematic review of the complaints from the perspective of the complainant. How has the FCC managed its increasing indecency complaint load, and what does it tell consumers who have taken the time to write formal complaints about …

Does Video Delivered Over A Telephone Network Require A Cable Franchise?, Robert W. Crandall, J. Gregory Sidak, Hal J. Singer

Federal Communications Law Journal

This Article examines whether, on legal or policy grounds, video services provided over a telephone network should be regulated as a traditional cable service or whether a different approach is warranted. The Authors find that municipal franchise requirements for video services provided over telephone networks would reduce consumer welfare. The Authors estimate that, even without considering any welfare gains owing to higher quality, the consumer welfare gains from entry exceed the potential loss in franchise fee revenue to municipalities by a factor of nearly three to one.

Broadcast Technology As Diversity Opportunity: Exchanging Market Power For Multiplexed Signal Set- Asides, Michael M. Epstein

Federal Communications Law Journal

This Article proposes an access system based on a theory of quid pro quo: a bargained.for-exchange in which broadcasters would trade media access for market power. Under this quid pro quo approach, the FCC would administer a scaled metric whereby the greater a media company's audience reach, the more access that company must provide to citizens with diverse and local content. Since digital technology permits broadcasters to "multiplex" their television signal bandwidth into multiple signal programming streams, an opportunity exists for the government to require public access to one or more of these programming streams in return for relaxing caps …

The Legal Status Of Spyware, Daniel B. Garrie, Alan F. Blakley, Mathew J. Armstrong

Federal Communications Law Journal

This Article examines the legal status of Spyware under federal and common law in the United States of America. The Authors begin with a technical overview of Spyware technology, which covers Spyware's functionality, methods of dispersion, and classification. The Authors then analyze the treatment of Spyware under the Computer Fraud and Abuse Act, the Stored Communications Act, the Wiretap Act, and under general tort claims of trespass to chattels, invasion of privacy, and intrusion upon seclusion. The Authors conclude that none of the aformentioned causes of action provide an adequate remedy at law for Spyware victims. Moreover, the Authors note …

The Information Quality Act: The Little Statute That Could (Or Couldn't?) Applying The Safe Drinking Water Act Amendments Of 1996 To The Federal Communications Commission, Kellen Ressmeyer

Federal Communications Law Journal

In December 2000, Congress passed the Information Quality Act - a two sentence rider to a 712-page Appropriations Bill. The Information Quality Act, which seeks to ensure the quality of government-disseminated information, places the White House Office of Management and Budget in a supervisory role. The Office of Management and Budget subsequently finalized a set of mandatory Guidelines applicable to all federal agencies. Among other things, the Guidelines require adherence to the scientific standard articulated in the 1996 Amendments to the Safe Drinking Water Act where such agencies engage in risk analysis to human health, safety, and the environment. As …

The Law Of Unintended Consequences, Susan Ness

Federal Communications Law Journal

No abstract provided.

The Failure Of Competition Under The 1996 Telecommunications Act, Gene Kimmelman, Mark Cooper, Magda Herra

Federal Communications Law Journal

No abstract provided.

A Public Interest Perspective On The Impact Of The Broadcasting Provisions Of The 1996 Act, Angela J. Campbell

Federal Communications Law Journal

No abstract provided.

Private Eyes Are Watching You: With The Implementation Of The E-911 Mandate, Who Will Watch Every Move You Make?, Geoffrey D. Smith

Federal Communications Law Journal

The FCC's E-911 mandate, which will ensure that emergency operators automatically receive a caller's location information, should help save lives. However, privacy advocates have expressed concern over the potential for wireless carriers, the government, and third parties to collect and store personal information. Congress has addressed these concerns with legislation, but privacy advocates still worry that consumers are not adequately protected. This Note addresses this concern and argues that in order to ensure consumer protection, additions are needed to section 222 of the Telecommunications Act of 1996. The Note discusses the importance of individual privacy and balances it against the …

An Economic Approach To The Regulation Of Direct Marketing, Daniel R. Shiman

Federal Communications Law Journal

The growing ubiquity of electronic media and the almost total absence of cost in mass distributions of direct marketing have exacerbated the problem of the increasing intrusion of direct marketing into the privacy of citizens. The Author proposes utilization of a microeconomic social welfare analysis to guide policymakers in determining what forms of direct media should be regulated and what the most effective forms of regulation are likely to be. Sending and receiving costs provide the key factors in determining the extent of the "welfare-reducing marketing" and "marketing aversions," but the Author points to a number of other factors as …

Costs And Consequences Of Federal Telecommunications Regulations, Jerry Ellig

Federal Communications Law Journal

Federal regulation of telecommunication profoundly affects United States consumers, determining what services are priced above and below cost, what kinds of technologies and services are offered and when, and what firms are allowed to compete. In this Article, the Author surveys the voluminous literature on the economic costs and outcomes of these regulations, focusing predominantly on the effects of regulation on prices, quantity, quality of service, and overall consumer and social welfare. The Author estimates costs and assesses outcomes for ten types of federal telecommunications regulated activity: telecommunications regulatory spending, long-distance access charges, universal service funding, local number portability, enhanced …

Homeland Security And Wireless Telecommunications: The Continuing Evolution Of Regulation, Christopher Guttman-Mccabe, Amy Mushahwar, Patrick Murck

Federal Communications Law Journal

Since the grant of the first Commercial Mobile Radio Service ("CMRS") license over twenty years ago, the wireless industry has grown from a service of convenience to one that is indispensable. What once was a device used for sporadic phone calls now is viewed by many Americans as a source of invaluable communication and security. As the wireless industry matured, government officials turned to the mobile phone as a way to make the United States safer. E-9 11, the Communications Assistance for Law Enforcement Act ("CALEA"), Wireless Priority Service ("WPS"), and Outage Reporting all were initiated on the wireless platform …

Virginia Cellular And Highland Cellular: The Fcc Establishes A Framework For Eligible Telecommunications Carrier Designation In Rural Study Areas, Mark C. Bannister

Federal Communications Law Journal

In 1996, Congress passed the first substantial rework of the Communications Act of 1934. This Act was intended to benefit consumers by encouraging competition and establishing a series of explicit mechanisms for assuring universal service. One of the outcomes is the creation of significant controversy over the federal, and in some cases, state universal service subsidy for the class of telecommunications providers typically known as wireless or cellular and defined by federal statute as "commercial mobile radio service" ("CMRS"). Incumbent local exchange carriers ("ILECs") characterize these subsidies as a windfall and as unnecessary to provide wireless phone service. They argue …