Communications Law Commons^™

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of the restriction were based on national security fears that no longer apply, the restriction is unlikely to be repealed without significant lobbying.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, …

Text Message Monitoring After Quon V. Arch Wireless: What Private Employers Need To Know About The Stored Communications Act And An Employee's Right To Privacy, Jennifer Heidt White

Washington Journal of Law, Technology & Arts

In June 2008, the Ninth Circuit Court of Appeals held that public employees have a reasonable expectation of privacy in the content of text messages sent from employer-owned devices. The court concluded that the expectation of privacy arises vis-à-vis the text-message service provider, even where an employee has signed an explicit waiver of such an expectation. The decision, Quon v. Arch Wireless, raises difficult questions about the limitations placed on text-message service providers by the Stored Communications Act, and an employer’s ability to regulate and monitor employee use of technology in the workplace. Although Quon only applies to public …

Screening Out Cyberbullies: Remedies For Victims On The Internet Playground, Shira Auerbach

Cardozo Law Review

No abstract provided.

What's Sex Got To Do With It - A Cinematic Critique On The Arguments Against Same-Sex Marriage, Scott Norton

UC Law SF Communications and Entertainment Journal

For years, the same governmental interests have been presented to justify prohibitions on same-sex marriage. Supporters of the ban argue that marriage promotes procreation and child-rearing, neither of which can supposedly be done within the confines of a same-sex relationship. This note suggests the movie I Now Pronounce You Chuck & Larry illustrates that in practice, these justifications have become antiquated. Instead of defining marriage as two individuals in a committed relationship, courts tend to inject social mores into their decisions regarding the legality of same-sex marriage.

C.B.C. Distribution And Marketing, Inc. V. Major League Baseball Advanced Media, L.P.: The First Amendment Versus The Right Of Publicity In The Eighth Circuit, Surina Mann

UC Law SF Communications and Entertainment Journal

This note examines the friction between the First Amendment and the right of publicity by examining the case of C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., a case regarding fantasy league baseball. This note begins by discussing the legacy of the right of publicity, the policy goals that the right of publicity was devised to further, and several different tests that courts have designed to balance the right of publicity with the rights guaranteed by the First Amendment. This note then goes on to illustrate the background of fantasy league baseball and critique the C.B.C. …

The Nation's Broadband Success Story: The Secrecy Of Fcc Broadband Infrastructure Statistics, Benjamin W. Cramer

UC Law SF Communications and Entertainment Journal

The Federal Communications Commission regularly promotes the competitiveness of the American broadband market and the availability of robust services to consumers. Since 2000, the Commission has reported on broadband deployment by zip code, and by late 2006 broadband was supposedly available in 99% of American zip codes, with those zip codes representing 99% of the population. However, the viability of the FCC's zip code-based measurement methodology has long been a matter of controversy, because until recently broadband was counted as "available" in a zip code even if as few as one household in the area has obtained service. This paper …

How Hands-On Will Regulation Of Hands-Free Be - An Analysis Of Sb 1613 And The Effectiveness Of Its Proposed Regulation, Jessica Croze

UC Law SF Communications and Entertainment Journal

In order to prepare for the consequences of this new law, it will be extremely valuable to understand how "hands-free laws" are regulated in other states. Comparing California's new regulations to these existing laws and recognizing the history behind its inaction are crucial. An analysis of these previous attempts to regulate cell phone use while driving will ease the adoption of this new legislation in California. Since California's legislation, Bill 1613, regarding the ban on hand-held cellular devices while driving, was enacted the resulting public effect may have failed to fulfill the intention of the law.

The Politics Of Power: A Social Architecture Analysis Of The 2005-2008 Federal Shield Law Debate In Congress, Cathy Packer

UC Law SF Communications and Entertainment Journal

Would a federal shield law hamper the U.S. Department of Justice's power to combat terrorism and other crimes? Would the law protect the media from the chilling effects of federal subpoenas? Or would the law unwisely grant the already powerful media legal rights denied to other citizens? And who should have the power to decide whether to allow the media to refuse to comply with federal subpoenas? These and similar questions about how power should be distributed among branches of the federal government and the media were at the center of the Congressional hearings and debate on the proposed federal …

Is Free Riding Aided By Parody To Sneak Between The Cracks Of The Trademark Dilution Revision Act, Corina I. Cacovean

UC Law SF Communications and Entertainment Journal

Dilution as a form of intrusion on a trademark has been the object of intense consumer and competition discourses in United States. From the United States Supreme Court decision in Moseley v. VSecret Catalogue, in 2003, to the Fourth Circuit's decision in Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, in 2006, the concept of dilution has become more sophisticated and its intersection with unfair competition and First Amendment law is far from being settled. This note is an attempt to answer the questions of whether the courts, by broadly interpreting the TDRA as being designed to protect freedom …

Intellectual Property Infringement: The Question Of Advertising Injury, Hilary Ditch

UC Law SF Communications and Entertainment Journal

Over the past several decades, business entities have increasingly relied on Commercial General Liability insurance for coverage and protection against the significant costs of defending against intellectual property lawsuits. However, despite this increased usage, the coverage provided for intellectual property infringement claims by Commercial General Liability insurance policies remains uncertain and indeterminate. This frustrating conclusion, reached by numerous courts, legal scholars and insurance practitioners, captures the current state of the law as it applies to coverage for intellectual property infringement claims. Consequently, many business entities seeking to apply their insurance policies to defend against intellectual property claims may face uncertainty …

Targeting Bad Behavior: Why Federal Regulators Must Treat Online Behavioral Marketing As Spyware, Heather Ng Osborn

UC Law SF Communications and Entertainment Journal

The FTC has sanctioned more than a dozen companies during the past two years for privacy violations involving the improper installation of spyware software on personal computers. The spyware software allowed companies to watch and control consumers' online activities, either without the consumer's knowledge or with the consumer's knowledge but without reasonable means for the consumer to stop it. The practice of online targeted advertising raises similar privacy issues as the use of spyware software because it also involves behind-the-scenes tracking, which most consumers never notice. Online targeted advertising allows marketing companies to engage in the same behavior as companies …

Trademark Battles In A Barbie-Cyber World: Trademark Protection Of Website Domain Names And The Anticybersquatting Consumer Protection Act, Kiran Nasir Gore

UC Law SF Communications and Entertainment Journal

Mattel's Barbie doll is more than just a trademarked toy produced for child consumption-Barbie has entered public discourse and taken on a life of her own as a cultural phenomenon. The Ninth Circuit Court of Appeals has referred to Mattel's Barbie doll as "possibly the most famous toy in history." With this popularity, also comes unwanted attention. She has become an American icon and taken on additional meanings and status at a societal level; attracting the attention of artists, writers, academics, and commentators in a way that is beyond the scope of Mattel's trademark property rights. The tension between Mattel's …

The Friends Creative Exemption: How Stereotypes Play A Role In Objectivity Standards, Jessica N. Leal

UC Law SF Communications and Entertainment Journal

The recent, controversial California Supreme Court holding in Lyle v. Warner Brothers Television Productions is illustrative of whether the pervasiveness of sexually explicit conduct is insufficient as a matter of law or should be sent to the trier of fact. The court held that a former writer's assistant for the popular, adult-oriented television show Friends failed to establish actionable harassment under the California Fair Employment and Housing Act ("FEHA"). According to the court, the circumstances did not establish a prima facie case of hostile workplace environment sexual harassment, even though there was no dispute that sexually coarse and vulgar language …

Campaign Finance Regulation: The Resilience Of The American Model, William Araiza

Faculty Scholarship

No abstract provided.

Parental Rights In Myspace: Reconceptualizing The State's Parens Patriae Role In The Digital Age, Sheerin N. S. Haubenreich

UC Law SF Communications and Entertainment Journal

Generally, parents have a great deal of leeway in their childrearing decisions, including choices in the content of their children's internet use. But there is a harm about which many parents and state and federal governments are unaware: reputational harm. Children and teenagers' current internet use puts them at risk of permanently harming their reputations, and there are no protective measures in place, whether educational or regulatory. They are posting personal information on the internet at an alarming rate mostly via social networking sites like MySpace.com and Facebook.com without an awareness of the present and long-term consequences, such as the …

I'M A Highway Star: An Outline For A Federal Right Of Publicity, Sean D. Whaley

UC Law SF Communications and Entertainment Journal

The federal government has failed to codify a federal publicity right. This has caused numerous problems recently, as varying state laws unevenly restrain the commercial speech of many actors in interstate commerce. However, the nature of the publicity right as a property right and its essential function in interstate commerce calls for Congress to adopt a federal publicity right. Similar to the dual system of trademark protection, a federal publicity right will not preempt such rights at the state level. Rather, establishing such a right will detail proper justification and contours of the right. By establishing a federal right, the …

The Supreme Court As The Grand Mediator In Social Regulation Of The Media - De Gustibus Non Disputandum Est: Or Are They, Richard J. Hunter, Ann M. Mayo, Hector R. Lozada

UC Law SF Communications and Entertainment Journal

This article presents a study of administrative and statutory schemes designed to regulate various aspects of the media in considering broad questions of indecency, obscenity, and societal and parental controls over content in various forms of media broadcasting. The article then provides an important historical back-drop by referencing Burstyn v. Wilson (a 1950s case involving an alleged "secular sacrilege") and Pacifica Foundation (the George Carlin "Filthy Words" monologue case). It then turns to a discussion of the litigation and controversy spurred by passage of the Communications Decency Act of 1996 and the Child Online Protection Act of 1998 as the …

Licensed Anarchy: Anything Goes On The Internet - Revisiting The Boundaries Of Section 230 Protection, Thomas D. Huycke

West Virginia Law Review

No abstract provided.

Actual Interpretation Yields Actual Dissemination: An Analysis Of The Make Available Theory Argued In Peer-To-Peer File Sharing Lawsuits, And Why Courts Ought To Reject It, Shana Dines

UC Law SF Communications and Entertainment Journal

The Recording Industry Association of America has sued thousands of individuals for peer-to-peer file sharing in an attempt to save the failing music industry and resist new technology. The lawsuits rely on an interpretation of copyright law that making a work available to the public is an infringement of the distribution right. The recording industry has vigorously argued this "make available" theory because it is easy to prove, given the limited evidence obtainable in peer-to-peer file sharing cases. However, the district courts in various federal circuits are split on accepting this theory, some holding that actual dissemination is required to …

Mobile Messaging Making E-Discovery Messy: Mobile Messaging And Electronic Discovery, Daniel B. Garrie, Maureen Duffy-Lewis, Richard L. Gillespie, Mari Joller

UC Law SF Communications and Entertainment Journal

Mobile e-discovery spans the globe and creates a multitude of issues for litigants and the courts. The issue of privacy, jurisdiction, privilege, and consent intersect in the mobile space with users sending text messages, twittering, posting notes and videos on-line, and sharing pictures all in the span of a work day. Of course this is further complicated by the integration of the 24/7 workplace and the electronic discovery issues of retention, preservation, and production of the data that mobile devices create. This article examines these issues and provides an overview of some of the more common underlying mobile telecommunication technologies.

Avatar Rights In A Constitutionless World, Tiffany Day

UC Law SF Communications and Entertainment Journal

Courts will face novel issues in constitutional law when the virtual world begins to resemble the real world. Virtual world platforms, such as Second Life, offer a glimpse into the problems that online players face, as well as a look at how some of these problems can be handled in real life. While courts have largely ignored in-game legal issues and have left game creators with the power to decide punishment and distribution of rights, as online commerce and business models begin to grow these issues become more relevant to today's society.

This Note examines the various theories of player …

When Sex And Cell Phones Collide: Inside The Prosecution Of A Teen Sexting Case, Robert D. Richards, Clay Calvert

UC Law SF Communications and Entertainment Journal

The high-tech phenomenon of teen "sexting," which is now garnering mainstream media attention, is pushing and straining traditional legal notions of what constitutes child pornography. As teens take sexually provocative photos of themselves and send them off to other teens via cell phones, some prosecutors are charging them as child pornographers. This article pivots on an exclusive, in-person interview conducted in Florida by the authors in May 2009 with attorney Lawrence Walters and his client Phillip Alpert, who sexted a nude photo of his girlfriend when he was 18 years old. Alpert was charged under child pornography laws and, today, …

"It's Third And Eight!": The Third Circuit Adopts An Eight-Factor Test For Likelihood Of Confusion In False Enforcement Cases And Flags Related Defenses In Facenda V. Nfl Films, Justin Kerner

UC Law SF Communications and Entertainment Journal

Due to the increased importance of celebrity in American culture, the volume of false endorsement claims under Section 43(a) of the Lanham Act has risen steadily in the last twenty years. In the third circuit, courts have adopted a three-element test for false endorsement cases: plaintiffs must prove that (1) the mark in question is valid and legally protectable; (2) the plaintiff owns the mark; and (3) the defendant's use of the mark will likely create confusion. In Facenda v. NFL Films, the Third Circuit Court of Appeals adopted a eight-factor test for the third element, likelihood of confusion. This …

Extraterritorial Electioneering And The Globalization Of American Elections, Zephyr Teachout

Faculty Scholarship

This Essay explores a fascinating new truth: because of the Internet, governments, corporations, and citizens of other countries can now meaningfully participate in United States elections. They can phone bank, editorialize, and organize in ways that impact a candidate's image, the narrative structure of a campaign, and the mobilization of base support. Foreign governments can bankroll newspapers that will be read by millions of voters. Foreign companies can enlist employees in massive cross-continental email campaigns. Foreign activists can set up offline meetings and organize door-to-door campaigns in central Ohio. They can, in short, influence who wins and who loses. Depending …

Fcc Jurisdiction Over Isps In Protocol-Specific Bandwidth Throttling, Andrew Gioia

Michigan Telecommunications & Technology Law Review

Over the past decade, the Internet has matured from its dial-up infancy into the nation's dominant communications infrastructure. Such rapid growth and accessibility--while fostering free speech and innovation like nothing before--has nonetheless created complex regulatory and policy questions for both the Federal Communications Commission (FCC) and the cable companies providing the nation's broadband Internet access. For instance, Comcast, one such Internet provider, has recently brought to the fore the question of how, and to what extent, the FCC can ensure an open and accessible Internet through the company's recent actions in selectively targeting and interfering with the connections of certain …

Wireless Net Neutrality Regulation And The Problem With Pricing: An Empirical, Cautionary Tale, Babette E.L. Boliek

Michigan Telecommunications & Technology Law Review

I present here a unique empirical analysis of the consumer welfare benefits of prior regulation in the mobile telecommunications industry. In particular, I analyze the relative consumer benefits of state rate regulation and federal entry regulation. The institution of filing requirements and FTC review and approval of various consumer pricing regimes is highly analogous to the consumer price controls imposed by various state level public utility commissions in the past. Furthermore, the imposition of a zero-price rule is analogous to past rate regulation; in particular it is similar to past wholesale regulation with its underlying principles of open access and …

The Failure Of Sexting Criminalization: A Plea For The Exercise Of Prosecutorial Restraint, Robert H. Wood

Michigan Telecommunications & Technology Law Review

The purpose of this Essay is to explore the various legal approaches to the sexting phenomenon through an analysis of a decision by the United States District Court for the Middle District of Pennsylvania, which granted a temporary restraining order enjoining the prosecution of sexting teens on constitutional grounds, and an examination of current and pending legislative attempts to deal with the sexting phenomenon. Section I describes the facts leading up to the district court decision and its subsequent holding. Section II examines the approaches to sexting prosecution and legislation taken by other states. Section III analyzes the legal issues …

Regulating Robocalls: Are Automated Calls The Sound Of, Or A Threat To, Democracy, Jason C. Miller

Michigan Telecommunications & Technology Law Review

African-American voters receive a phone message implying that they are not registered to vote. Others hear "an almost threatening male voice," a "fake New York accent," factual distortions about legislation, false endorsements from controversial groups, calls promoting one candidate claiming to be from his opponent, and a constant barrage of annoying phone calls designed to make voters think a different candidate was sponsoring them. These messages were delivered through automated political telephone calls, also known as robocalls. Robocalls are cheap and efficient--one can deliver a pre-recorded message through 100,000 automated phone calls in one hour for only $2000. Consequently, robocalls …

Lessons Learned From The Spectrum Wars: Views On The United States Effort Going Into And Coming Out Of A World Radiocommunication Conference, Donna Coleman Gregg

Scholarly Articles

No abstract provided.

Toward A Broadband Public Interest Standard, Anthony E. Varona

Articles

No abstract provided.