Communications Law Commons^™

The Discriminatory Effects Of Protecting America's Children , Jennifer E. Jones

The Modern American

No abstract provided.

Imus, Indecency, Violence & (And) Vulgarity: Why The Fcc Must Not Expand Its Authority Over Content, Clay Calvert

UC Law SF Communications and Entertainment Journal

This article, pivoting on events and controversies that occurred in 2007, addresses two questions affecting freedom of expression on the broadcast airwaves: (1) Should the regulatory power of the Federal Communications Commission be expanded to include control over racist and sexist language like that used by radio host Don Imus in his infamous "nappy head hos" remark?; and (2) Should the regulatory power of the FCC be expanded, per its request to Congress, to include control over violent imagery and storylines on television, including broadcast, cable and satellite television? This article contends that the answer to both questions is the …

The California Supreme Court's Decision In Barrett V. Rosenthal: How The Court's Decision Could Further Hamper Efforts To Restrict Defamation On The Internet, Joshua Azriel

UC Law SF Communications and Entertainment Journal

In November 2006, the California Supreme Court ruled in Barrett v. Rosenthal that Internet "users" are immune from liability when they post or forward online information that is defamatory. The court cited section 230 of the 1996 Communications Decency (CDA) Act as precedent for its decision. The law grants immunity to Internet Service Providers (ISPs) and other "users" for any offensive material posted on their online interactive computer services. This article analyzes the Barrett ruling and argues that it leaves three questions unanswered: (1) How does the CDA apply to conspiracies between two users of the Internet where one is …

Pirates Of The Carribean: Offshore Internet Gambling Sites Cursed B Unlawful Internet Gambling Enforcement Act, Bunnam Sprehichet

UC Law SF Communications and Entertainment Journal

Internet gambling, once coined the "crack cocaine of gambling," has become somewhat of a reality. The industry has grown exponentially, attracting thousands of offshore Internet gambling operators that are unlicensed, untaxed, and unregulated. Policing these operators under decades old antigambling laws presents a difficult task because such laws were enacted before the advent of the Internet. Policy concerns including gambling by minors, gambling addiction, racketeering, tax preservation, and the recommendations by the National Gambling Impact Study Commission collectively prompted the promulgation of the Unlawful Internet Gambling Enforcement Act (UIGEA). The note analyzes the UIGEA to clarify its misconceptions and to …

A Modern Analytical Framework For Monopolization In Innovative Markets For Products With Network Effects, John Mcgaraghan

UC Law SF Communications and Entertainment Journal

In the most recent of three landmark antitrust cases against software giant Microsoft, the company argued that courts should apply a different approach to analyzing monopolization charges against "new economy" industry defendants. The court rejected Microsoft's proposal, and this note explores the merit of some of its foundational principles. The note proposes an analytical framework that employs several mechanisms to address unique features of technology markets, such as the "competition for the field"" and "network effects." Under the proposed model, monopolization analysis would condemn those firms which misuse the power to control innovation in the market over time, rather than …

Constitutional Etiquette And The Fate Of "Supreme Court Tv", Bruce Peabody

Michigan Law Review First Impressions

In traditional media outlets, on the Internet, and throughout the halls of Congress, debate about whether the Supreme Court should be required to televise its public proceedings is becoming more audible and focused. To date, these discussions have included such topics as the potential effects of broadcasting the Court, the constitutionality of Senator Arlen Specter’s current congressional initiative, S. 344, and how the public would use or abuse televised sessions of our highest tribunal.

Granting Certiorari To Video Recording But Not To Televising, Scott C. Wilcox

Michigan Law Review First Impressions

Cameras are an understandable yet inapt target for Supreme Court Justices apprehensive about televising the high Court’s proceedings. Notwithstanding Justice Souter’s declaration to a congressional subcommittee in 1996 that cameras will have to roll over his dead body to enter the Court, the Justices’ public statements suggest that their objections are to televising—not to cameras. In fact, welcoming cameras to video record Court proceedings for archival purposes will serve the Justices’ interests well. Video recording can forestall legislation recently introduced in both houses of Congress that would require the Court to televise its proceedings. The Court’s desired result—the legislation disappearing …

Will It Make My Job Easier, Or What's In It For Me?, Kenneth N. Flaxman

Michigan Law Review First Impressions

Putting aside philosophical questions about public access to government proceedings—what we now call “transparency”—and without regard to whether televising Supreme Court arguments is a logical extension of the common law’s “absolute personal right of reasonable access to court files” as described in 1977 by the Seventh Circuit in Rush v. United States, my real concern about whether Supreme Court arguments should be televised is somewhat narcissistic. Will it make my job—as a plaintiff’s civil rights lawyer who dabbles in criminal defense and post-conviction matters and who has had five adventures as “arguing counsel” in the Supreme Court—easier? I explain below …

C-Span's Long And Winding Road To A Still Un-Televised Supreme Court, Bruce D. Collins

Michigan Law Review First Impressions

In 2005 when Senator Arlen Specter (R-PA) first proposed legislation requiring the Supreme Court of the United States to televise its oral arguments, he resuscitated a twenty-plus-years long effort by several news organizations to achieve the same goal. For at least that long, C-SPAN has been ready to provide the same kind of video coverage of the federal judiciary as it has been providing of the Congress and the president. If cameras are ever permitted in the high Court’s chamber, C-SPAN will televise every minute of every oral argument, frequently on a live basis, and will do so in its …

The Right Legislation For The Wrong Reasons, Tony Mauro

Michigan Law Review First Impressions

Senator Arlen Specter took a bold and long-overdue step on January 22, 2007, when he introduced legislation that would require the Supreme Court to allow television coverage of its proceedings. But instead of making his case with a straightforward appeal to the public’s right to know, Specter has introduced arguments in favor of his bill that seem destined to antagonize the Court, drive it into the shadows, or both. Chances of passage might improve if Specter adjusts his tactics.

Gee Whiz, The Sky Is Falling!, Boyce F. Martin Jr.

Michigan Law Review First Impressions

I am reminded of Chicken Little’s famous mantra as I listen to some Supreme Court Justices’ reactions to the prospect of televising oral arguments. Their fears—such as Justice Kennedy’s warning that allowing cameras in the courtroom may change the Court’s dynamics—are, in my opinion, overblown. And some comments, most notably Justice Souter’s famous exclamation in a 1996 House subcommittee hearing that “the day you see a camera come into our courtroom, it’s going to roll over my dead body,” make it sound as if the Justices have forgotten that our nation’s court system belongs to the public, not merely the …

Justice, And Only Justice, You Shall Pursue: Network Neutrality, The First Amendment And John Rawls's Theory Of Justice, Amit M. Schejter, Moran Yemini

Michigan Telecommunications & Technology Law Review

As broadband becomes the public's technology of choice to access the Internet, it is also emerging as the battlefield upon which the struggle for control of the Internet is being fought. Operators who provide physical access to the service claim the right to discriminate among the content providers who use the infrastructure in which the operators have invested. In contrast, content providers warn that exercising such a policy would "undermine the principles that have made the Internet such a success."[...] For academic observers, analysis of this issue has thus far been confined to the areas of property law, innovation, and …

In Search Of Regulatory Equilibrium, Lili Levi

Articles

No abstract provided.

Summing Up The Public Interest. Review Of Media Diversity And Localism: Meaning And Metrics, Victoria F. Phillips

PIJIP Faculty Scholarship

Philip Napoli's Media Diversity and Localism: Meaning and Metrics is a thoughtful and first of its kind compilation of some of the ongoing research and scholarship examining the concepts of localism and diversity underlying the Federal Communications Commission's public interest standard in broadcasting. The collection of essays addresses these fundamental goals from a variety of disciplines beyond the law, including political science, communications policy, sociology, and economics. These essays explore the values associated with these two goals, apply performance metrics to assess existing regulatory policies intended to preserve and promote these goals, and reflect on their meaning in the new …

Restorative Justice As Internalization Of The Rule Of Law: Combining Restoration With Retribution In The Film Festen, Michal Alberstein

Cardozo Journal of Conflict Resolution

In this paper, I will use a film analysis to explore the potential of restorative justice processes as a more comprehensive, mature approach to the phenomenon of crime. By following the microlevel transformations within the family trial/victim-offender mediation in the film, I will try to develop a notion of law that incorporates the retributive elements into a broader framework of restoration and amendment. I will use cultural analysis as a foundation for the theoretical argument and also offer an "appropriate justice," inter-cultural formula for addressing crime in a comprehensive manner.

Constitutionalizing Mandatory Retraction In Defamation Law, Elad Peled

UC Law SF Communications and Entertainment Journal

This article discusses mandatory retraction, which court rulings and legal literature rarely have addressed. The article proposes a solution designed to provide adequate protection for the reputation of public figures, which may be defined as "constructive mandatory retraction." Under the proposed solution, courts handling public figures' libel actions against the media would be empowered to grant a new remedy, namely, a declaratory judgment stating that the falsity of the defaming publication has been established by clear and convincing proof, accompanied by an injunctive relief ordering the defendant to report on that decision in a prominent manner. Courts may grant this …

Betting On Success: Can The Unlawful Internet Gambling Enforcement Act Help The United States Achieve Its Internet Gambling Policy Goals, James N. Brenner

UC Law SF Communications and Entertainment Journal

This note addresses the effectiveness of the Unlawful Internet Gambling Enforcement Act (UIGEA) in achieving the United States' policy goals on tnternet gambling. This note does not discuss the wisdom of the United States' policy on Internet gambling, or the wisdom of the government's choice to prohibit, instead of regulate, Internet gambling to achieve its policy goals. Rather, this note focuses on whether or not the UIGEA adequately addresses the policy concerns over offshore Internet casinos. First, this note discusses federal laws, treaties, proposed legislation, and policy concerns which address Internet gambling. Second, this note discusses the language of the …

Perfect Enforcement Of Law: When To Limit And When To Use Technology, Christina Mulligan

Faculty Scholarship

No abstract provided.

What's Wrong With Wireless?: An Argument For A Liability Approach To Electromagnetic Spectrum Regulation, Daniel Sineway

Georgia Law Review

For decades, the Federal Communications Commission has regulated the transmission of radio signals under a single regulatory framework. The current regulatory model functions extremely well for simple radio or television broadcasts, but newer technologies such as cellular phone networks or wireless internet systems are hindered by the present framework's rigid, inflexible construct. In response, several prominent scholars have proposed alternatives to the existing scheme. The two most notable alternatives are a private property approach and a commons approach. The private property model treats the ability to broadcast a signal as a private property right, and thus includes all of the …

Fencing In The Frontier: A Look Into The Limits Of Mail Fraud, Kristen Kate Orr

Kentucky Law Journal

No abstract provided.

The Teach Act: Recognizing Its Challenges And Overcoming Its Limitations, Oren R. Griffin, Stephana I. Colbert

Articles, Chapters in Books and Other Contributions to Scholarly Works

Technological advancements centered on the Internet, distance education, and digitally transmitted information have created tremendous opportunities for educational institutions. Congress enacted the Technology, Education, and Copyright Harmonization Act (TEACH Act) to exploit these opportunities and provide educators with an important tool to take advantage of the information super-highway. While the Congressional intent of the Act has merit, its provisions arguably create troubling obligations and potential liability for colleges and universities. This article discusses challenges presented by the TEACH Act and proposes modifications intended to address some of the most troubling aspects of the Act.

The Media And National Security, Robert A. Sedler

Law Faculty Research Publications

In our discussion of the media and national security, we begin with the First Amendment, not only with its legal doctrines and principles, but also with the values of the First Amendment and its function in a free and democratic society. We will first discuss how the First Amendment protects the media with respect to its disclosure of information purportedly affecting national security. We will then discuss the process by which the media voluntarily refuses to publish information on the ground that the disclosure of the information will seriously harm the national security. We will finally discuss the relationship between …

Preventing A Modern Panopticon: Law Enforcement Acquisition Of Real-Time Cellular Tracking Data, Steven B. Toeniskoetter

Richmond Journal of Law & Technology

Nineteenth Century philosopher Jeremy Bentham designed a prison system known as the Panopticon which was arranged in such a way that a single guard could, at any given time, view the activities and whereabouts of any particular prisoner. Bentham designed the prison in such a way that the prisoners could never tell whether they were being watched. Twentieth Century French philosopher Michel Foucault further considered use of the Panopticon as a means of societal control through fear in his seminal book Discipline and Punish: The Birth of the Prison.

A Decent Proposal: The Constitutionality Of Indecency Regulation On Cable And Direct Broadcast Satellite Services, Matthew S. Schwartz

Richmond Journal of Law & Technology

Little Timmy’s parents both work late, and he often finds himself sitting alone in front of the television after school. He doesn’t know the difference between “broadcast,” “cable,” or “direct broadcast satellite,” but he does know how to work the remote control. One day, as he is clicking through the channels – 2, 4, 7, 93, 128, they’re all the same to him – he comes across a provocative scene. What are those two people doing? he wonders with wide eyes. And where are most of their clothes? At that moment, Timmy’s father walks in and is shocked by the …

Regulation Of Municipal Wi-Fi, Michael Botein

Articles & Chapters

No abstract provided.

Should Property Or Liability Rules Govern Information?, Mark A. Lemley, Philip J. Weiser

Publications

This Article focuses on an unappreciated and significant aspect of the debate over property rules in the technology law context. In particular, it argues that the classic justification for legal entitlements protected by a property rule - i.e., a right to injunctive relief - depends on the ability to define and enforce property rights effectively. In the case of many technology markets, the inability to tailor injunctive relief so that it protects only the underlying right rather than also enjoining noninfringing conduct provides a powerful basis for using a liability rule (i.e., awarding the relevant damages to the plaintiff) instead …

Communicating During Emergencies: Toward Interoperability And Effective Information Management, Philip J. Weiser

Publications

The suboptimal state of communications technology used by public safety agencies has emerged as a high profile political issue. In most cases, public safety agencies are able only to communicate using antiquated networks, engineered solely for providing voice communications and unable to interoperate beyond a select number of users. This type of system fails to provide the type of economies of scale, network flexibility, or the broader functionalities routinely used by the military and private sector enterprises. The challenge facing policymakers is thus how to develop a next generation architecture for public safety and spur adoption of a new set …

Network Stories, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

In 1962, Rachel Carson named the natural environment. Scientists were beginning to understand the complex web of ecological cause and effect; naming that web gave it independent existence and invested that existence with political meaning. In 1996, James Boyle named the cultural environment. Boyle’s act of naming was intended to jumpstart a political movement by appropriating the complex web of political meaning centered on the interdependency of environmental resources.

But naming, although important, is only a beginning. The example of the natural environment shows us that to build from a name to a movement requires two things. First, you have …

Hit And Miss: Leverage, Sacrifice, And Refusal To Deal In The Supreme Court Decision In Trinko, Nicholas Economides

Vanderbilt Journal of Entertainment & Technology Law

Under the rules of the Telecommunications Act of 1996, incumbent local exchange carriers, including Verizon, were obligated to lease parts of their local telecommunications network to any firm, at "cost plus a reasonable profit" prices, that could combine them at will, add retailing services, and sell local telecommunication service as a rival to the incumbent. AT&T, an entrant into the local telecommunications market, leased parts of Verizon's network. Curtis Trinko, a local telecommunications services customer of AT&T, sued Verizon, alleging various anti-competitive actions of Verizon against AT&T, including that Verizon raised the costs of AT&T, its downstream retail rival. The …

Calling All Angles: Perspectives On Regulating Internet Telephony, Melissa Winberg

Vanderbilt Journal of Entertainment & Technology Law

In 1996, Congress passed the Telecommunications Act, substantially revising the Communications Act of 1934 to reflect technological advances, including the Internet, and Congress's deregulatory goals. Currently, however, new technologies are challenging the viability of the statutory definitions and regulatory schemes of the statute. Internet telephony, commonly called Voice over Internet Protocol (VoIP), is both a replacement for traditional telephone service and a new web-based technology. Given the current competitive political climate and the magnitude of the interests involved, Congress is unlikely to succeed in altering the telecommunications regime. Thus, the Federal Communications Commission, which has the authority to regulate interstate …