Communications Law Commons^™

Long Live The Lie Bill!, Lucila I. Van Dam

University of Michigan Journal of Law Reform

What successful defamation plaintiffs typically desire and doctrinally deserve is to have their reputations restored. Presently, however, a plaintiff who has established that she was defamed by the defendant is entitled only to an award of damages, which does nothing to restore reputation. This Note proposes that in addition to a damages award, courts-- if they are to take seriously their obligation to compensate the plaintiff-- should order the defendant to retract the defamatory statement. Contrary to the prevailing view, this Note argues that the proposed retraction order does not jeopardize the First Amendment guarantee of free expression.

Did At&T Die In Vain? An Empirical Comparison Of At&T And Bell Canada, Eli M. Noam

Federal Communications Law Journal

"The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective."' Conference held at the University of Pennsylvania Law School on April 18-19, 2008.

Did the Divestiture of AT&T achieve its purpose? It is helpful to turn to Canada, whose telecommunications industry and regulation were similar but which did not experience a divestiture. Since AT&T was split up in 1982-4, national telecom market concentration in the U.S. has bounced back to a national duopoly structure, with an HHI concentration index of 2,986, higher than for Canada's similar national duopoly with an HHI of 2,463. Local telecom wireline competition is …

Editor's Note, Christopher J. Harayda

Federal Communications Law Journal

No abstract provided.

The Enduring Lessons Of The Breakup Of At&T: A Twenty-Five Year Retrospective, Christopher S. Yoo

Federal Communications Law Journal

"The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective."' Conference held at the University of Pennsylvania Law School on April 18-19, 2008.

The Bell System Divestiture: Background, Implementation, And Outcome, Joseph H. Weber

Federal Communications Law Journal

"The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective."' Conference held at the University of Pennsylvania Law School on April 18-19, 2008.

By 1982, the Bell System had operated an integrated telecommunications network connecting almost everyone in the United States for almost 100 years. That system had been designed and operated as a monopoly, but by the 1960s, new technologies were being developed which led to pressure to allow competitive entry. After many incremental changes, the Bell System divestiture--complete separation of long-distance service and manufacturing fiom local service provision-was finally adopted as a way of implementing this …

An Oligopoly Analysis Of At&T'S Performance In The Wireline Long- Distance Markets After Divestiture, Paul W. Macavoy

Federal Communications Law Journal

"The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective."' Conference held at the University of Pennsylvania Law School on April 18-19, 2008.

The antitrust law books promise competition from breaking up the monopoly firm in a Sherman Act case remedy. Not in this case; the question is what "kind" of oligopoly.

Will Access Regulation Work?, Gerald R. Faulhaber

Federal Communications Law Journal

"The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective."' Conference held at the University of Pennsylvania Law School on April 18-19, 2008.

The FCC is transitioning from a rate regulation regime to an access regime. A rate regulation regime gives all customers full access to network facilities (common carrier) at regulated rates-generally, rate base rate of return regulation. An access regime is one in which all competitors are given full access to incumbents' networks, with little or no retail rate regulation, thereby allowing competition (over incumbents' networks) to discipline the market. Is this a good idea? Is …

The Decline And Fall Of At&T: A Personal Recollection, Richard A. Posner

Federal Communications Law Journal

"The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective."' Conference held at the University of Pennsylvania Law School on April 18-19, 2008.

In his luncheon talk at the conference, presented here in slightly revised form, Judge Posner discusses his personal involvement with the events that led up the Justice Department's major antitrust suit against AT&T that culminated in the breakup of the telephone monopoly. The stages of his involvement included participation in the work of President Johnson's Task Force on Communications Policy, consulting for AT&T in the lawsuit itself, and his negative advice to the chairman of …

The At&T Consent Decree: In Praise Of Interconnection Only, Richard A. Epstein

Federal Communications Law Journal

"The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective."' Conference held at the University of Pennsylvania Law School on April 18-19, 2008.

This article examines the consequences of the Bell consent decree of 1982. In the short run, the decree sought to end the AT&T's Corporate domination of the telecommunications network. But it did so in an overambitious way that chose to break up the basic system into constituent parts even though the preferred remedy was a more modest initiative that would have opened the network up to interconnection by rival carriers. In charting the wrong path, …

Toward A Unified Theory Of Access To Local Telephone Networks, Daniel F. Spulber, Christopher S. Yoo

Federal Communications Law Journal

"The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective."' Conference held at the University of Pennsylvania Law School on April 18-19, 2008.

Over the past several decades, regulatory authorities have imposed an increasingly broad array of access requirements on local telephone providers. In so doing, policymakers typically applied previous approaches to access regulation without fully considering whether the regulatory justifications used in favor of those previous access requirements remained valid. They also allowed each access regime to be governed by a different pricing methodology and set access prices in a way that treated each network component as …

Reexamining The Legacy Of Dual Regulation: Reforming Dual Merger Review By The Doj And The Fcc, Philip J. Weiser

Federal Communications Law Journal

"The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective."' Conference held at the University of Pennsylvania Law School on April 18-19, 2008.

A central challenge for competition policy merger review is to structure the analysis of merger remedies so that the antitrust agencies play an effective and central role, with regulatory agencies complementing-as opposed to overlapping or contradicting--their judgments. At present, the U.S. system sometimes veers towards a worst-case scenario where federal antitrust authorities-the FTC and DOJ-impose regulatory remedies that overlap with regulatory policy and regulatory agencies perform duplicative merger reviews and impose remedies unrelated to the …

Essential Facilities And Trinko: Should Antitrust And Regulation Be Combined?, Timothy J. Brennan

Federal Communications Law Journal

"The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective."' Conference held at the University of Pennsylvania Law School on April 18-19, 2008.

The Supreme Court's 2004 decision in Trinko represented a radical change from prior doctrine ensuring that antitrust laws applied in regulated industries. The change resulted from a failure to appreciate that regulation and antitrust can be complements. Regulation can boost the value of antitrust by creating incentives to refuse to deal in order to reap monopoly profit otherwise proscribed by regulation. Ironically, the essential facilities doctrine rejected by the Trinko court and the Trinko decision …

"Fleeting Expletives" Are The Tip Of The Iceberg: Fallout From Exposing The Arbitrary And Capricious Nature Of Indecency Regulation, Dave E. Hutchinson

Federal Communications Law Journal

On November 4, 2008, the Supreme Court heard arguments in FCC v. Fox Television Stations, which centers on whether or the FCC's policy allowing fleeting expletives to be found actionably indecent is arbitrary and capricious. The Second Circuit found that the fleeting expletives policy is arbitrary and capricious as a matter of administrative law. The Supreme Court decision will provide much needed guidance for what constitutes a reasoned basis in the indecency regime's contextual approach. This Note argues that--despite the FCC's recognition that time and context changes the meaning of language-the FCC's indecency regime is at loggerheads with broadcasters because …

Are Regulators Forward-Looking? The Market Price Of Copper Versus The Regulated Price Of Mandatory Access To Unbundled Local Loops In Telecommunications Networks, Jerry A. Hausman, J. Gregory Sidak, Timothy J. Tardiff

Federal Communications Law Journal

"The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective."' Conference held at the University of Pennsylvania Law School on April 18-19, 2008.

Around the world, since 1996, regulators have mandated that incumbent local exchange carriers (ILECs) offer competitors access to their network at regulated prices that reflect forward-looking cost. Regulated prices for unbundled network elements are based on total element long-run incremental cost (TELRIC), which in turn is calculated using engineering models that estimate the costs of a hypothetical carrier employing the most efficient telecommunications technology currently available and the lowest cost network configuration, given the existing …

Masthead Vol.61 No.1 (2008)

Federal Communications Law Journal

No abstract provided.

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.

Self-Incrimination And The Epistemology Of Testimony, Michael S. Pardo

Cardozo Law Review

The Supreme Court's limitation of the privilege against self-incrimination to evidence of a testimonial nature has been controversial. The doctrinal reliance on a distinction between physical and testimonial evidence has proven difficult to apply in practice, and it has been criticized as being descriptively inaccurate, analytically incoherent, and normatively indefensible. This article offers a defense of the distinction on epistemological grounds. The philosophical focus on testimony as a source of knowledge provides some insight into what makes testimony distinct as an epistemic source. These considerations are used to provide a coherent and principled way to distinguish what evidence to treat …

Section 1: Moot Court, Fcc V. Fox Television Stations, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Regulation Of Blog Campaign Advocacy On The Internet: Comparing U.S., German, And Eu Approaches, Allison R. Hayward

Cardozo Journal of International and Comparative Law

This essay examines how U.S., German, and EU laws have treated the regulation of political commentary on the Internet. As political blogging grows in popularity, the reach of these web sites, and their influence in political campaigns, may make them a target for regulation by rivals and incumbents, both at home and abroad. Since ordinarily any URL can be reached from anywhere with Internet access, conflicting domestic rules about what can be said (and who can say it) present potential for conflicting rules on blogging.

In brief, U.S. law protects blogging content, but may impose restrictions on the source of …

Brief Of Amici Curiae American Academy Of Pediatrics Et Al. In Support Of Neither Party, Federal Communications Commission V. Fox Television Stations, No. 07-582 (U.S. June 9, 2008), Angela J. Campbell, Coriell Wright

U.S. Supreme Court Briefs

No abstract provided.

Editor's Note, Matthew D. Lawless

Federal Communications Law Journal

No abstract provided.

Performing Art: National Endowment For The Arts V. Finley, Randall P. Bezanson

Federal Communications Law Journal

In this modified version of a chapter in his forthcoming book, ART AND FREEDOM OF SPEECH (Univ. of Illinois Press, 2008-09), Professor Bezanson begins to probe the nature of art and its relation to the first amendment free speech guarantee. The essay uses the Finley v. NEA case, and specifically its discussion of Finley's performance art, to critique the Supreme Court's very approach to the Finley case, and to view the issues from the perspective of art, artistic freedom, and the Supreme Court's role in fashioning constitutional protection for art as art, and not simply as cognitive speech.

Antitrust Language Barriers: First Amendment Constraints On Defining An Antitrust Market By A Broadcast's Language, And Its Implications For Audiences, Competition, And Democracy, Catherine J.K. Sandoval

Federal Communications Law Journal

This Article explores whether the language of a broadcaster's program appropriately defines an antitrust market, consistent with First Amendment and antitrust principles. In its evaluation of the 2008 private equity buyout of Clear Channel Communications, the Department of Justice ("DOJ") defined the antitrust market by the language of the broadcast, as it had done for the 2003 merger of Univision and Hispanic Broadcasting Corporation. This Article uses social science research on Spanish and English-language radio and television to evaluate that decision. It argues that the distinct content and messages that characterize Spanish and English-language programming show that market definition is …

The Terrorist Is A Star!: Regulating Media Coverage Of Publicity-Seeking Crimes, Michelle Ward Ghetti

Federal Communications Law Journal

Publicity-seeking crimes, including terrorism, almost by definition depend on the media for their effectiveness. Twenty-five years ago, when the bulk of this article was written, critics both within and outside the news industry had begun to voice an awareness, if not a concern, for the ease with which such criminals obtained publicity on both a national and international platform and it looked as if something might be done within the media establishments to thwart this manipulation of the press. Today, it is possible to look back and see that, in fact, nothing has been done and, so, individuals such as …

The Politics Of Competition: Review Of Clifford Winston's Government Failure Versus Market Failure: Microeconomics Policy Research And Government Performance And Mark K. Landy, Martin A. Levin & Martin Shapiro, Eds., Creating Competitive Markets: The Politics Of Regulatory Reform, Russell P. Hanser

Federal Communications Law Journal

Two recent books focus attention on the role of regulation in the modem economy and the reasons why efforts at deregulation succeed or fail. Clifford Winston's Government Failure Versus Market Failure: Microeconomics Policy Research and Government Performance reviews empirical studies of regulation and its alternatives, arguing that economic regulation has quite often done more harm than good. In Creating Competitive Markets: The Politics of Regulatory Reform, editors Mark K. Landy, Martin A. Levin and Martin Shapiro collect essays addressing the political dangers faced by those pursuing market liberalization, both before and (especially) after reform is enacted. Read together, these books …

Masthead Vol.60 No.3 (2008)

Federal Communications Law Journal

No abstract provided.

When The Flock Ignores The Shepherd-Corralling The Undisclosed Use Of Video News Releases, Jeffrey Peabody

Federal Communications Law Journal

Every time you sit down to watch the evening news, you see not only locally produced stories, but also pre-packaged, corporate-sponsored "video news releases" ("VNRs") that are nothing more than commercials in disguise. Unlike political advertising, which must comply with strict sponsorship identification rules, these VNRs remain unregulated. This Note discusses the failed "Truth in Advertising Act," and proposes mandatory disclosure and beefed-up enforcement as necessary steps in stemming the growing use of these "fake news" spots

The Newest Way To Screen Job Applicants: A Social Networker's Nightmare, Carly Brandenburg

Federal Communications Law Journal

Social networking is an easy way to share information with friends, family, and the company that just offered you an interview. Employers are utilizing all of the tools available to them as they strive to hire the right people, and this means that social networkers may need to self censor in order to protect their information from falling into the wrong hands. This Note questions whether social networkers can legally expect or enjoy any right to privacy with respect to their online postings.

The Simpsons, 24, And The Law: How Homer Simpson And Jack Bauer Influence Congressional Lawmaking And Judicial Reasoning, Steven Keslowitz

Cardozo Law Review

No abstract provided.

What If Samuel D. Warren Hadn't Married A Senator's Daughter: Uncovering The Press Coverage That Led To The Right To Privacy, Amy Gajda

Faculty Scholarship

No abstract provided.