Communications Law Commons^™

A Leap Forward: Why States Should Ratify The Uniform Computer Information Transactions Act, David A.P. Neboyskey

Federal Communications Law Journal

The Uniform Computer Information Transaction Act (UCITA) has been presented to the states for their ratification. Patterned after the Uniform Commercial Code (UCC), UCITA began as an addition to the UCC, but differences between the statutes required UCITA to emerge as a separate entity. The National Conference of Commissioners of Uniform State Laws (NCCUSL) drafted UCITA and approved the Act in Summer 1999. The Act now awaits approval by state legislatures. This Comment analyzes UCITA and argues that the states should ratify the Act. The Comment favorably compares the UCC and UCITA. The UCC follows the principle of "freedom of …

Business-Only E-Mail Policies In The Labor Organizing Context: It Is Time To Recognize Employee And Employer Rights, Allegra Kirsten Weiner

Federal Communications Law Journal

Cyberspace changed communication in the workplace. Now that employees are on employers' e-mail systems, union organizers can contact employees in the workplace, during working hours, without any of the obstacles that more traditional forms of union communication impose. Of course this new technologically-advanced labor organizing is ideal for the labor organizers, but it also interferes with the rights of employers. Which groups interests' prevail? Unfortunately there is no precedent. Normally, adherence to the National Labor Relations Board (NLRB) decisions is the answer but no case has come before the NLRB that solves this issue. Therefore, employers and employees are left …

Who’S Taking Whom: Some Comments And Evidence On The Constitutionality Of Telric, David Gabel, David I. Rosenbaum

Federal Communications Law Journal

The FCC requires that the price of unbundled network elements be equal to the total element long-run incremental cost of production plus a reasonable contribution to common and joint costs. This pricing standard has the potential of making the telecommunications market more competitive. TELRIC prices, however, are set independently of historic costs and therefore may not compensate investors for incurred costs. Hence, incumbent local exchange carriers have been fighting its implementation. In all probability, the U.S. Supreme Court will become involved in the debate over its adoption. The Supreme Court has looked at changes in valuation methods in the past. …

Progress And Regress On Interlata Competition, David M. Mandy

Federal Communications Law Journal

At this writing, the FCC has denied Bell Operating Company applications for entry into in-region interLATA (long-distance) markets in Oklahoma, Michigan, South Carolina, Louisiana, and on a reapplication in Louisiana; approved one application for New York; and is currently considering an application for Texas. Thus, almost four years elapsed from the passage of the Telecommunications Act of 1996 until any Bell Company received relief from the line-of-business restriction, and even now relief has been received in only one state. This Article briefly reviews the economics of Bell Company entry into interLATA markets; summarizes the reasons given by the FCC for …

Editor's Note, Meggan L. Frye

Federal Communications Law Journal

No abstract provided.

A History And Analysis Of The Federal Communications Commission’S Response To Radio Broadcast Hoaxes, Justin Levine

Federal Communications Law Journal

Courts have long held that the government can punish an individual for falsely shouting "Fire!" in a crowded theater. But what is a government agency to do when the venue is none other than a theater of the imagination heard throughout the nation? Ever since the broadcast of Orson Welles's War of the Worlds, the FCC has struggled to find a balance in preventing harmful broadcast hoaxes while still encouraging radio to develop vibrant, imaginative programming. What defines a hoax deemed harmful to the public interest versus one that constitutes mere playful entertainment? This Article details the major events and …

Strategies To Promote Advanced Telecommunications Capabilities, Bob Rowe

Federal Communications Law Journal

Section 706 instructs both the FCC and state public utility commissions to promote deployment of advanced telecommunications capabilities. Much policy discussion of broadband access to date has focused on rearguing preexisting telecommunications policy debates, and has not produced significant incremental deployment of ATCs. ATC issues are much more diverse and specific than is commonly assumed, potentially requiring a menu of strategies to resolve. The "cooperative federalist" structure of the Telecommunications Act provides important context and guidance for implementing section 706. A Federal-State Joint Conference or task force would be a cooperative federalist vehicle for identifying ATC issues, developing strategies to …

The Game Of Radiopoly: An Antitrust Perspective Of Consolidation In The Radio Industry, Sarah Elizabeth Leeper

Federal Communications Law Journal

The Telecommunications Act of 1996 eliminated nationwide radio ownership restrictions and liberalized local ownership caps. As a result of this deregulation, the radio industry has experienced mass consolidation. Faced with an unprecedented number of proposed mergers, the federal antitrust enforcement agencies play an increasingly important role in the outcome of media mergers. The Horizontal Merger Guidelines, the primary vehicle of antitrust enforcement, address primarily economic factors to prevent anticompetitive mergers. Despite the healthy revenues generated through economies of scope and scale, it is questionable whether a sufficient regulatory mechanism exists to ensure diversity of voices. Although it is still too …

Masthead Vol.52 No.2 (2000)

Federal Communications Law Journal

No abstract provided.

Copyright And Antitrust: The Effects Of The Digital Performance Rights In Sound Recordings Act Of 1995 In Foreign Markets, Connie C. Davis

Federal Communications Law Journal

The licensing of copyrighted nondramatic works by performance rights societies has long been recognized as a potential source of antitrust violations. In 1995, the Congress passed the Digital Performance Rights in Sound Recordings Act in an effort to deal with the licensing problems associated with nondramatic musical works. The DPRSRA created a right in sound recordings to perform the copyrighted work publicly by means of a digital audio transmission as well as establishing compulsory licensing scheme. However, the DPRSRA failed to address the problem of licensing of nondramatic works in foreign markets. This Note identifies the anticompetitive licensing scheme practiced …

Online Auction Fraud: Are The Auction Houses Doing All They Should Or Could To Stop Online Fraud?, James M. Snyder

Federal Communications Law Journal

In April 1998, the FTC released a consumer alert pertaining to the increasing problem of online auction fraud. As the number of online auction participants increased, online auction fraud was becoming more prevalent. The FTC requested comments regarding methods that would be appropriate for curbing the increase in consumer deception. Many in the online auction industry proposed voluntary self-regulation. This Note exposes the inadequacy of industry self-regulation by analogizing online auction abuse with the misuse and near downfall of the 900-number industry. This Note proposes that only a regime of strict industry guidelines that the FTC initiates will halt online …

Don’T Talk To Strangers: An Analysis Of Government And Industry Efforts To Protect A Child’S Privacy Online, Dorothy A. Hertzel

Federal Communications Law Journal

Studies indicate that nearly two-thirds of children use the Internet. Children online users have created unique concerns for Internet providers and lawmakers. The collection, storage, and sale of a child online user's personal information without the child or parent's knowledge or consent has elicited much concern. Such a practice is commonplace in the world of the Internet. Congress, through the Child Online Privacy Protection Act, and the Internet industry have addressed how to curb this practice. In addition to these efforts, technological tools are currently available that block the transfer of personally identifiable information from the user to the computer. …

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 …

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 …

Masthead Vol.52 No.1 (1999)

Federal Communications Law Journal

No abstract provided.

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 …

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 …

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 …

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 …

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 …

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 …

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 …

Editor's Note, Malcolm J. Tuesley

Federal Communications Law Journal

No abstract provided.

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 …

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.

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 …