Administrative Law Commons^™

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 …

Network Neutrality Between False Positives And False Negatives: Introducing A European Approach To American Broadband Markets, Jasper P. Sluijs

Federal Communications Law Journal

Network neutrality has become a contentious issue both in Europe and the United States. Regulators on both sides of the Atlantic face digital divides in their society, and are confronted with potentially conflicting policy goals-to incentivize private investment in next-generation broadband while maintaining "neutral" and competitive broadband networks.

This Article compares nascent American and European network neutrality policy in terms of regulatory error costs. Emerging markets, such as broadband, are more likely to be affected by regulatory errors, and these errors have graver consequences in emerging markets than in regular markets. U.S. telecommunications policy traditionally has advanced a trial-and-error approach …

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 …

Whose Burden Is It Anyway? Addressing The Needs Of Content Owners In Dmca Safe Harbors, Greg Janson

Federal Communications Law Journal

Much of today's network neutrality debate addresses concerns that cable providers will limit access to competing Web-based services delivering multimedia content. While proposals to mandate nondiscrimination for all Internet traffic surely will help create a competitive environment where online entertainment providers can prosper, ISP interference is not the only threat. Online entertainment sites that relay user-generated content are threatened by crippling litigation brought by copyright holders for actions taken by third parties using their services. Reliance on the safe harbors provided in the Digital Millennium Copyright Act has, in most cases, proved unsuccessful. This Note addresses the concerns of both …

Virtually Enabled: How Title Iii Of The Americans With Disabilities Act Might Be Applied To Online Virtual Worlds, Joshua Newton

Federal Communications Law Journal

The rise and popularity of online virtual worlds, such as World of Warcraft and Second Life, holds significant promise for people with disabilities. For people who are unable to easily leave home or travel, virtual worlds provide a public venue, wherein people may interact freely without the social stigma that accompanies disability. However, access to these virtual worlds may be inhibited by physical, visual, or aural impairments, and virtual-world developers can be hostile to modifying their products to mitigate these difficulties. Thus, some disability advocates have turned to Title III of the Americans with Disabilities Act, arguing that places of …

12th Annual Open Government Summit: Access To Public Records Act & Open Meetings Act, 2010, Department Of Attorney General, State Of Rhode Island

School of Law Conferences, Lectures & Events

No abstract provided.

Legal Transitions And The Problem Of Reliance, David M. Hasen

Faculty Publications

This Article analyzes the literature on legal transitions. The principal focus is taxation, but the analysis generalizes to other areas. I argue that the theoretical apparatus developed by scholars active in the legal transitions area suffers from significant conceptual shortcomings. These shortcomings include the unwarranted assimilation of legal to factual change, the naturalization of conventional arrangements, and the disregard of the distinction between making law and finding it. As a consequence, the recent literature offers an analysis that is unable either to explain actual transitions or to provide an adequate theory of how legal change should take place. In the …

A Survey Of Federal Agency Rulemakers’ Attitudes About E-Rulemaking, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

Drawing on a survey of U.S. civil servants engaged in developing regulations across a wide variety of agencies, this chapter analyzes how bureaucrats in key positions view the impact on their work of “electronic rulemaking” – that is, the creation of online opportunities for members of the public to comment on proposed administrative regulations. There is strong evidence that rulemakers appreciate the value of new technologies for public participation purposes and for internal administration and coordination functions, but less evidence that they see the utility of e-rulemaking for improving the quality of administrative rules.

The Consequences Of Congress’S Choice Of Delegate: Judicial And Agency Interpretations Of Title Vii, Margaret H. Lemos

Faculty Scholarship

Although Congress delegates lawmaking authority to both courts and agencies, we know remarkably little about the determinants-and even less about the consequences-of the choice between judicial and administrative process. The few scholars who have sought to understand the choice of delegate have used formal modeling to illuminate various aspects of the decision from the perspective of the enacting Congress. That approach yields useful insight into the likely preferences of rational legislators, but tells us nothing about how (or whether) those preferences play out in the behavior of courts and agencies. Without such knowledge, we have no way of testing the …

United States Food Law Update: Food Allergy Labels, Reaching Organic Equivalence, Misbranding Litigation And Regulatory Takings, A. Bryan Endres, Michaela N. Tarr

Journal of Food Law & Policy

The start of 2009 found the nation transitioning to a new presidential administration, speculating on the impact new appointees to the executive branch may have on regulatory priorities and monitoring a bill' making its way through Congress that seeks a substantial overhaul of the food regulatory system. This version of the Food Law Update will analyze two major developments in food allergy labeling: finalization of rules requiring the labeling of Cochineal extract/ carmine and an analysis of the proposed "gluten-free" product labels. The update next discusses the execution of an equivalency agreement between the United States and Canada with respect …

Trustworthiness As A Limitation On Network Neutrality, Aaron J. Burstein, Fred B. Schneider

Federal Communications Law Journal

The policy debate over how to govern access to broadband networks has largely ignored the objective of network trustworthiness-a set of properties (including security, survivability, and safety) that guarantee expected behavior. Instead, the terms of the network access debate have focused on whether imposing a nondiscrimination or "network neutrality" obligation on network providers is justified by the condition of competition among last-mile providers. Rules proposed by scholars and policymakers would allow network providers to deviate from network neutrality to protect network trustworthiness, but none of these proposals has explored the implications of such exceptions for either neutrality or trustworthiness.

This …

Adaptive Policymaking: Evolving And Applying Emergent Solutions For U.S. Communications Policy, Richard S. Whitt

Federal Communications Law Journal

This Article presents some specific ways that U.S. policymakers should use teachings from the latest thinking in economics to create a conceptual framework in order to grapple with current controversies in communications law and regulation. First, it provides a brief overview of Emergence Economics, with an emphasis on the "rough formula" of emergence and the unique role of technological change in creating and furthering innovation and economic growth. Second, this paper explicates the general concept of "Adaptive Policymaking" by governments and includes some proposed guiding principles, an outline of the public policy design space, and an adaptive toolkit to be …

Viewpoint Diversity And Media Ownership, C. Edwin Baker

Federal Communications Law Journal

A recent technically sophisticated study of the impact of media mergers on viewpoint diversity that found the impact is contextually variable should be entirely irrelevant to proper policy debates about regulation of media ownership. This Article examines the real reasons to oppose concentrated ownership and considers how the recent study went wrong.

Restraining False Light: Constitutional And Common Law Limits On A "Troublesome Tort", James B. Lake

Federal Communications Law Journal

The defamation tort is the common law's established remedy for false speech that causes reputational and emotional injury. That tort is subject to intricate constitutional, legislative, and common law rules that have evolved over decades. The false light invasion of privacy tort also provides a potential cause of action in response to injurious falsehood. False light, however, has been subject to much less judicial and legislative scrutiny than defamation. As a result, courts often are uncertain about the proper limits on false light and, in some cases, have countenanced false light claims that would have failed if filed as defamation …

The Role Of Theory And Evidence In Media Regulation And Law: A Response To Baker And A Defense Of Empirical Legal Studies, Daniel E. Ho, Kevin M. Quinn

Federal Communications Law Journal

We thank Professor Baker for a stimulating response to an Article in which we offered empirical evidence of editorial viewpoint diversity in the face of media consolidation. We appreciate his praise of the Article as "apply[ing] innovative statistical techniques" and as "far superior methodologically to most empirical studies" he has seen. At the same time, Baker "denies the policy relevance" to our Article because empirical evidence is "entirely irrelevant" to the field of media regulation under his preferred normative theory. Baker argues sweepingly that the legal academy's increased willingness to consider the perspectives of quantitative empiricists and positive theorists is …

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 …

The Never-Ending Limits Of § 230: Extending Isp Immunity To The Sexual Exploitation Of Children, Katy Noeth

Federal Communications Law Journal

In 2006, the U.S. District Court for the Eastern District of Texas extended civil liability to Yahoo! under § 230 of the Communications Decency Act so that it could not be sued for knowingly profiting from a Web site where members exchanged sexually explicit pictures of minors. The court found that the reasoning of the seminal § 230 case, Zeran v. AOL, was analogous and that policy considerations mandated its holding.

This Note argues that a multifaceted approach is needed to prevent future courts from following that decision, including an amendment to § 230 that would impose civil liability upon …

Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan

Working Paper Series

This paper argues, first, that the natural law position, according to which it is the function of human law and political authorities to instantiate certain individual goods and the common good of the political community, does not entail judges' having the power or authority to speak the natural law directly. It goes on to argue, second, that lawmaking power/authority must be delegated by the people or their representatives. It then argues, third, that success in making law depends not just on the exercise of delegated power/authority, but also on the exercise of care and deliberation or, in the article's terms, …

The Riaa, The Dmca, And The Forgotten Few Webcasters: A Call For Change In Digital Copyright Royalties, Kellen Myers

Federal Communications Law Journal

Emerging webcasting technology is playing an increasing role in modem society. The ease of use of webcast technology has brought about an increased user base as well as an increased viability for small webcasting businesses. However, the mix-tape genre of independent Internet radio has been financially and legislatively abused as a forerunner of rapidly advancing digital technology and concerns over protecting copyright royalties. This Note argues for a revision of the DMCA to provide a middle ground between protecting copyrighted works and allowing the continued existence of Internet radio.

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 …

A Fundamental Misunderstanding: Fcc Implementation Of U.S. Wto Commitments, Laura B. Sherman

Federal Communications Law Journal

In bilateral and multilateral trade agreements, the United States has agreed to open the market for telecommunications services to foreign service suppliers, an obligation implemented by the FCC since 1998. In contrast, the United States has made no commitments with respect to broadcasting services or broadcast licenses. This article clarifies the different treatment of telecommunications services and broadcast services in U.S. trade obligations and FCC orders.

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 …

Business Solutions To The Alien Ownership Restriction, Greg Snodgrass

Federal Communications Law Journal

The alien ownership restriction on broadcast licenses has had a profound effect on the entertainment industry over the past few decades. While the origins of the restriction were based on national security fears that no longer apply, the restriction is unlikely to be repealed without significant lobbying. Given the unlikelihood of repeal, this Note concludes that entertainment conglomerates should apply a two-pronged approach to overcome the barrier imposed by the ownership restriction. First, conglomerates should build powerful nonbroadcast superstations. Second, conglomerates should push the FCC to gradually loosen its application of the restriction. While this is not a perfect solution, …

When The Music Stops, Why Not Require Certain Title Vii Plaintiffs To Find A Chair On Which To Rest Their Complaint?, 42 J. Marshall L. Rev. 505 (2009), Catherine R. Caifano

UIC Law Review

No abstract provided.

Vebas To The Rescue: Evaluating One Alternative For Public Sector Retiree Health Benefits, 42 J. Marshall L. Rev. 879 (2009), Susan E. Cancelosi

UIC Law Review

No abstract provided.

When Is Lying Illegal? When Should It Be? A Critical Analysis Of The Federal False Statements Act, 43 J. Marshall L. Rev. 111 (2009), Steven R. Morrison

UIC Law Review

No abstract provided.

May Legislative History Be Considered At Chevron Step One: The Third Circuit Dances The Chevron Two-Step In United States V. Geiser, Melina Forte

Villanova Law Review (1956 - )

No abstract provided.

Tuck-It-Away Associates, L.P. V. Empire State Development Corp., Kelly D. Fisher

NYLS Law Review

No abstract provided.

Representation Reinforcement: A Legislative Solution To A Legislative Process Problem, Anita S. Krishnakumar

Faculty Publications

One of the most valuable—and disturbing—insights offered by public choice theory has been the recognition that wealthy, well-organized interests with narrow, intense preferences often dominate the legislative process while diffuse, unorganized interests go under-represented. Responding to this insight, legal scholars in the fields of statutory interpretation and administrative law have suggested that the solution to the problem of representational inequality lies with the courts. Indeed, over the past two decades, scholars in these fields have offered up a host of John Hart Ely-inspired representation reinforcing "canons of construction," designed to encourage judges to use their role as statutory interpreters to …