Law Commons^™

Editor's Note, Deborah J. Salons

Federal Communications Law Journal

No abstract provided.

The Regulation Of Interactive Television In The United States And The European Union, Hernan Galperin, Francois Bar

Federal Communications Law Journal

The broadcasting industry is rapidly entering the era of digitization, distributed intelligence, and interactivity. The case of interactive television offers an opportunity to investigate how desirable policy goals should be implemented in the post-convergence environment. This Article first reviews the evolution of the broadcasting industry through three successive models: the traditional "Fordist" television model, the current multichannel television model, and the emerging ITV model. Second, it characterizes the basic components of ITV and explores the concerns raised by the evolution of multichannel video programming distributors into ITV platform operators. Next, the Article reviews how regulators in the United States and …

The U.S. Supreme Court Addresses The Child Pornography Prevention Act And Child Online Protection Act In Ashcroft V. Free Speech Coalition And Ashcroft V. American Civil Liberties Union, Sue Ann Mota

Federal Communications Law Journal

Both the Child Pornography Prevention Act ("CPPA") and the Child Online Protection Act ("COPA") were intended by Congress to protect minors. The CPPA was intended to protect minors from the harmful effects of virtual child pornography. The COPA was intended to protect minors from pornography currently available commercially on the World Wide Web. However, in 2002, the U.S. Supreme Court addressed the constitutionality of both statutes: The Court struck down sections of the CPPA as overbroad and unconstitutional in Ashcroft v. Free Speech Coalition. In Ashcroft v. ACLU, the Court upheld some sections of COPA as not unconstitutionally overbroad, but …

Making And Keeping Regulatory Promises, Warren G. Lavey

Federal Communications Law Journal

Multiyear regulatory commitments, or their absence, are an important part of the functioning of the telecommunications services and products industries. In this Article, Warren G. Lavey argues that, under some conditions, it is both possible and beneficial for regulators to commit to a well-defined, multiyear sequence of regulatory changes. First, this Article examines several examples of how efforts for comprehensive reform fared in real multiyear implementations. It also explores how some piecemeal regulatory changes evolved into efforts for comprehensive reform based on a well-defined sequence. This Article considers the effects of multiyear regulatory promises through analysis of several regulatory actions …

Masthead Vol.55 No.1 (2002)

Federal Communications Law Journal

No abstract provided.

What’S In A Name?, Jonathan Zittrain

Federal Communications Law Journal

Book Review: Ruling the Root, Milton L. Mueller, Cambridge, Mass.: MIT Press, 2002, 301 pages.

A review of Milton L. Mueller's Ruling the Root, The MIT Press, 2002. In the spring of 1998, the U.S. government told the Internet: Govern yourself. This unfocused order-a blandishment, really, expressed as an awkward "statement of policy" by the Department of Commerce, carrying no direct force of law-came about because the management of obscure but critical centralized Internet functions was at a political crossroads. In Ruling the Root, Mueller thoroughly documents the colorful history both before and after this moment of inflection, and gives …

Veil Of Secrecy: Public Executions, Limitations On Reporting Capital Punishment, And The Content-Based Nature Of Private Execution Laws, Nicholas Levi

Federal Communications Law Journal

One issue that is often overlooked in the capital punishment debate is the policy to shield the public from the specifics of the application, administration, and resolution of the death sentence. First, this Note provides a brief historical and analytical account of capital punishment in this country, and ultimately argues that this historical backdrop forces courts to characterize regulations as content-based distinctions on free speech. Second, this Note provides a background of the methods of capital punishment from the time of the country's founding through the early parts of the twentieth century. Furthermore, this Note will address the emergence of …

Enhancing Competition:Are Proposed Federal Communications Commission Rules That Treat Local Exchange Carrier Access To Multiple Tenant Environments A Taking?, Kathryn Gordon

Federal Communications Law Journal

The Telecommunications Act of 1996 marked a fundamental change in the attitudes of Congress and the Federal Communications Commission toward local telephone exchange carrier policy. This change affected local exchange carriers in many ways, including their relationships with the owners of multiple tenant environments, such as office buildings and apartment complexes. Under the Act, FCC rulemaking increased competitive local exchange carriers' access to the facilities of incumbent local exchange carriers by removing competition barriers. However, owners of of multiple tenant environments can also act as barriers to local exchange carrier competition. This Note will first review the general purpose behind …

Technology Law, J. Douglas Cuthbertson, Glen L. Gross

University of Richmond Law Review

No abstract provided.

Who's Talking? Disentangling Government And Private Speech, Leslie Gielow Jacobs

University of Michigan Journal of Law Reform

Several different constitutional rules apply to government actions that influence the content of speech. The government has far more discretion to determine speech content when the government itself is the speaker than when it regulates private speakers. Specifically, in the former circumstance, the government can discriminate according to viewpoint, whereas in the latter circumstance it cannot. While the application of the rules may be obvious when either the government or private entities speak alone, increasingly, through various different types of interactions, government and private groups or individuals are speaking together. This circumstance complicates the crucial constitutional determination, which is: who's …

Only The News That's Fit To Print: The Effect Of Hazelwood On The First Amendment Viewpoint-Neutrality Requirement In Public School-Sponsored Forums, Janna J. Annest

Washington Law Review

In Hazelwood School District v. Kuhimeier, the U.S. Supreme Court held that public school administrators can restrict expression in school-sponsored forums in a manner reasonably related to legitimate pedagogical concerns. Regulating First Amendment rights in any public forum usually requires that no point of view be suppressed in favor of its counterpoint, but the Hazelwood Court omitted the viewpoint-neutrality requirement from its holding. While the Sixth, Ninth and Eleventh Circuits continue to require viewpoint-neutral regulation of school-sponsored speech, the First and Third Circuits interpret Hazelwood as abrogating the viewpoint-neutrality requirement in school-sponsored forums. This Comment argues in favor of …

Law And Order On The Wild, Wild West (Www), Jeffrey J. Look

University of Arkansas at Little Rock Law Review

No abstract provided.

Corporate Cybersmear: Employers File John Doe Defamation Lawsuits Seeking The Identity Of Anonymous Employee Internet Posters, Margo E. K. Reder, Christine Neylon O'Brien

Michigan Telecommunications & Technology Law Review

Communications systems are now wide open and fully accessible, with no limits in range, scope or geography. Targeted audiences are accessible with pinpoint accuracy. Messages reach millions of readers with one click. There is a chat room for everyone. Most importantly, there is no limit on content. Therefore, employees can register their dissatisfaction by posting a message in a chat room. Moreover, the identity of the posting employee is not easily discoverable due to anonymous and pseudonymous communications capabilities. The nature of these online messages is qualitatively different from real-world communications. By way of example, newspapers have a responsibility regarding …

Editor's Note, Tom W. Brummett

Federal Communications Law Journal

No abstract provided.

The Concrete Barrier At The End Of The Information Superhighway: Why Lack Of Local Rights-Of-Way Access Is Killing Competitive Local Exchange Carriers, Christopher R. Day

Federal Communications Law Journal

The Telecommunications Act of 1996 contained the promise of a deregulated national telecommunications market with unfettered competition in both the local and long-distance telecommunications markets. Unfortunately, five years after the Act was signed, competition in local telephony is still not a reality in many areas. While some of the blame may be placed on failed business models and the withdrawal of venture capital from the market, a series of regulatory failures have also served to create an inhospitable environment for competitive local exchange carriers. One of the areas where this failure has been most evident is in governmental failure to …

An Efficiency Analysis Of Contracts For The Provision Of Telephone Services To Prisons, Justin Carver

Federal Communications Law Journal

As the numbers of prisons and prisoners continue to increase, so does the market for prison services. One of the more lucrative segments of this industry is the telephone market. To the extent that the services are provided to the prisoners, the relationship resembles a third party beneficiary contract, but due to the perverse financial incentives and the political climate surrounding prisons and prisoners, neither the state nor the private entity acts in the best interests of the consumers in particular or of society in general. This Article will analyze the efficiency of these contracts, introduce alternate arrangements, and compare …

Protecting The E-Marketplace Of Ideas By Protecting Employers: Immunity For Employers Under Section 230 Of The Communications Decency Act, Eric M.D. Zion

Federal Communications Law Journal

While we credit employers that provide employees with free Internet access, such access comes at a price to the public because employers are one of the traditional defendents in defamation suits. Complicating matters, Congress enacted the Communications Decency Act. Its section 230 provides broad federal immunity for ISPs when defamatory material of a third party is published using their services. With the passage of section 230, Congress rendered employers immune for the same tort which they are so closely associated. Some argue that employers should not be capable of invoking the immunity because it would allow employers to defame with …

Why Adco? Why Now? An Econmic Exploration Of Industry Structure For The "Last Mile" In Local Telecommunications Markets, T. Randolph Beard, George S. Ford, Lawrence J. Spiwak

Federal Communications Law Journal

This Article discusses important economic characteristics of local exchange markets. First, this Article explains that entry into the market requires large fixed and sunk costs, making entry risky and necessitating scale economies. Consequently, only a few local access networks can supply the market. These networks cannot be small, however, because a large market share is required to realize sufficient scale economies to effectively compete with the ILEC and survive. Secondly, acquiring the needed market share may be difficult for entrants who either attempt to purchase unbundled network elements from the incumbent or attempt to build their own network from the …

Does Censorship Really Protect Children?, Michael Grossberg

Federal Communications Law Journal

Book Review: Not In Front of the Children, “Indecency,” Censorship, and the Innocence of Youth, Marjorie Heins, New York: Hill and Wang, 2001, 402 pages.

Marjorie Heins spent much of her career as a lawyer battling censorship with the American Civil Liberties Union. Today, she continues the fight as Director of the Free Expression Policy Project of the National Coalition Against Censorship. In an effort to understand the people who work to constrict the free flow of information, she stepped out of the trenches and into the library to do some research. Not In Front of the Children is the …

Masthead Vol.54 No.3 (2002)

Federal Communications Law Journal

No abstract provided.

The Digital Divide And Courtroom Technology: Can David Keep Up With Goliath?, Michael E. Heintz

Federal Communications Law Journal

The federal judiciary recently embraced the technological revolution. Select courts are now equipped with state-of-the-art technology to aid in trial presentations. Before the judiciary made the improvements, litigants had to keep pace with the technological advancements themselves, often at a great cost. One might think that the recent technological improvements made to federal courtrooms would have widened the gap between large and small firms where the available resources are vastly different, but that is not the case. In fact, the installation of new technology into courtrooms serves to equalize what would otherwise be a "digital divide."

Part II of this …

Injunctive Relief In The Internet Age: The Battle Between Free Speech And Trade Secrets, Adam W. Johnson

Federal Communications Law Journal

The information revolution has led to technological innovations in the movement, storage, and dissemination of information. The Internet allows a person, with good or bad intent, to distribute information to millions of people. This ability raises serious implications when trade secret information is the subject of Internet postings. Once a trade secret becomes publicly available, it loses its legal secrecy, and special legal protection. Additionally, competitors and everyone else on the Internet can gain access to the information. For those who rely on trade secret protection to guard their inventions, this presents a growing concern.

This Note will illustrate the …

Carnivore, The Fbi’S E-Mail Surveillance System: Devouring Criminals, Not Privacy, Griffin S. Dunham

Federal Communications Law Journal

On July 11, 2000, the FBI intorduced Carnivore, an Internet monitoring system. It was designed, and is used exclusively, to carry out court-ordered surveillance of electronic communications. It is a tangible, portable device, tantamount to a phone tap, that allows the FBI to intercept and collect criminal suspects' e-mail without their knowledge or consent. This Note addresses competing and parallel interests between the government and society to determine the legitimacy and necessity of Carnivore. The purpose of this Note is twofold: first, to demonstrate the need for Carnivore to enable law enforcement to keep up with criminals who utilize cyberspace …

Arkansas Surfers And Their Privacy, Or Lack Thereof: Does The Common Law Invasion Of Privacy Tort Prohibit E-Tailers' Use Of "Cookies"?, Bryan T. Mckinney, Dwayne Whitten

University of Arkansas at Little Rock Law Review

No abstract provided.

Secret Codes, Military Hospitals, And The Law Of Armed Conflict: Could Military Medical Facilities' Use Of Encrypted Communications Subject Them To Attack Under International Law?, Philip R. Principe

University of Arkansas at Little Rock Law Review

No abstract provided.

Working The System, Christopher H. Sterling

Federal Communications Law Journal

Book Review: FCC Lobbying: A Handbook of Insider Tips and Practical Advice, Erwin G. Krasnow, David R. Siddall, and Michael D. Berg, Washington: Telecommunications Reports International, 2001, 225 pages.

Detariffing And The Death Of The Filed Tariff Doctrine: Deregulating In The “Self” Interest, Charles H. Helein, Jonathan S. Marashlian, Loubna W. Haddad

Federal Communications Law Journal

This Article reviews the history of the FCC's detariffing efforts, addressing the major issue raised not so much by detariffing itself, but by the FCC's view of detariffing orders impact on the Filed Tariff Doctrine. Notwithstanding the existence of the Doctrine for nearly a century, the FCC, through detariffing, has declared the Doctrine dead. This Article formally opposes the FCC's declaration and suggests that the FCC's motivations behind detariffing have failed to consider, much less attempted to properly balance, the conflicting public interests involved. Comparing and contrasting the legal rights enjoyed by long-distance carriers under the Filed Tariff Doctrine to …

My View From The Doorstep Of Fcc Change, Kathleen Q. Abernathy

Federal Communications Law Journal

Commissioner Abernathy discusses the five key principles that inform her regulatory philosophy:
1) Congress sets the FCC's responsibilities in the Communications Act, and the Commission should faithfully implement those tasks rather than pursuing an independent agenda;
2) Fully functioning markets deliver better products and services to consumers as compared to markets regulated by the government. Unless structural factors prevent markets from being competitive, or Congress has established objectives (such as universal service) that are not market-based, government should be reluctant to intervene in the marketplace;
3) Where the FCC promulgates rules, it should ensure that those rules are clear and …

Masthead Vol.54 No.2 (2002)

Federal Communications Law Journal

No abstract provided.

A Common Carrier Approach To Internet Interconnection, James B. Speta

Federal Communications Law Journal

This Article argues that some generalized interconnection rules are broadly appropriate. Specifically, some lessons learned from the ancient regime of common carrier regulation provide the appropriate regulatory foundation for the modern Internet. Since at least the middle ages, most significant carriers of communications and commerce have been regulated as common carriers. Common carrier rules have resolved the disputed issues of duty to serve, nondiscrimination, and interconnection. These were the problems of seventeenth-century ferry owners and innkeepers, eighteenth-century steamships, nineteenth-century railroads, and twentieth-century telephone networks. They are similar to the problems of the twenty-first-century Internet, and similar rules can govern its …