Communications Law Commons^™

Section 332 Of The Communications Act Of 1934: A Federal Regulatory Framework That Is "Hog Tight, Horse High, And Bull Strong", Leonard J. Kennedy, Heather A. Purcell

Federal Communications Law Journal

In 1993, recognizing that state and local regulatory practices were harmful to the development of widespread low-cost commercial and personal mobile radio services, the U.S. Congress passed, and President Clinton signed, legislation that freed wireless carriers from a dual federal-state regulatory structure. As a result, sections 332 and 2(b) of the Communications Act were revised to endow the FCC with exclusive jurisdiction over wireless regulation. Unfortunately, some courts and regulators have concluded that Congress did not intend to grant the FCC exclusive authority over wireless communications. Such rulings could be attributed to a misguided focus on traditional preemption analysis rather …

The Fcc And Aids Education: Helping Broadcasters Serve The Public Interest, Jason B. Acton

Federal Communications Law Journal

Despite recent advances in medical technology, AIDS remains a very serious international health threat. Even with the presence of new drug therapies that have helped to prolong the lives of those who suffer from the disease, scientists have been unable to develop a cure. Consequently education remains the primary weapon available in the war against AIDS. Unfortunately, AIDS education initiatives have found little support in the broadcast community. To renew their licenses, broadcasters are required to act in the public interest— requirement that has traditionally required very little. However, given the threat AIDS presents to society, the FCC should require …

Dogma In Cyberspace, Phillip V. Permut

Federal Communications Law Journal

Book Review: Law and Disorder in Cyberspace: Abolish the FCC and Let Common Law Rule the Telecosm, by Peter Huber, Oxford University Press, 1997, 265 pages.

Using Market-Based Spectrum Policy To Promote The Public Interest, Gregory L. Rosston, Jeffrey S. Steinberg

Federal Communications Law Journal

With the increasing demand for spectrum to accommodate emerging technologies, and the discovery that higher frequencies are usable, the FCC has replaced its reliance on administrative mechanisms for allocating spectrum with a more flexible, market-based approach. The FCC can best accomplish its mission of promoting the public interest by continuing to rely on competitive market forces and by establishing a clear and consistent paradigm for approaching allocation, assignment, usage, and other policies. Such a paradigm envisions an FCC that would actively monitor spectrum to remedy situations in which it is not used to its full value; establish mechanisms to reduce …

Section 254 Of The Telecommunications Act Of 1996: A Hidden Tax?, Nichole L. Millard

Federal Communications Law Journal

Congress has the sole power to levy and collect taxes. The Supreme Court has ruled that Congress may delegate this authority to administrative agencies so long as the will of Congress is clearly defined in the legislation. However, section 254 of the Telecommunications Act of 1996 operates as an unconstitutional delegation of Congress' authority to tax. This legislation provides the FCC with unfettered discretion in defining the boundaries of universal service and the authority to mandate that all consumers of telecommunications services subsidize the cost for low-income and rural consumers, as well as schools, libraries, and health care providers.

Schizophrenia Among Carriers: How Common And Private Carriers Trade Places, Rob Frieden

Michigan Telecommunications & Technology Law Review

This article will examine court cases and actions by the Federal Communications Commission (FCC) that distort the traditional concepts of common and private carriage by establishing new rights and responsibilities previously applicable to the other category of carrier. This article will also consider the feasibility of (a) maintaining the traditional common carrier regulatory model and (b) continuing the application of that model to basic services provided by local exchange carriers (LECs). This is especially important as LECs qualify to become private carriers tapping new market opportunities, even within the same geographical region where they provide basic services. Finally, this article …

Content And Control Of Public Access Channels On Cable Television After Denver Area Educationaltelecommunications Consortium V. Fcc: The Non-Forum Forum, Jeffrey S. Hop

Media Law and Policy

No abstract provided.

Fcc Reform: Governing Requires A New Standard, William H. Read, Ronald Alan Weiner

Federal Communications Law Journal

Perhaps one of the most crucial questions legislators need to address after passing the 1996 Act is the reform of the Federal Communications Commission. Some suggest that the Commission should be abolished altogether, while others recommend merely curtailing some of the Commission's responsibilities. However, true reform of the FCC recognizes that the Commission still has a vital role to play in the shaping of the telecommunications industry. Instead of dismantling the FCC altogether, Congress should redefine the public interest standard under which the FCC operates. The 1934 Communications Act charged the Federal Communications Commission with protecting "the public interest." While …

Understanding The Telecommunications Act Of 1996, Christopher H. Sterling

Federal Communications Law Journal

Books Reviewed:

Guidebook to the Telecommunications Act of 1996; by Charles D. Ferris, Frank W. Lloyd, and Howard J. Symons; Matthew Bender & Co., Inc. (1996); 298 pages

The Telecommunications Act of 1996: Special Report; by Peter W. Huber, Michael K. Kellogg, and John Thorne; Little, Brown & Co. (1996); 428 pages

Telecommunications Act Handbook: A Complete Reference For Business; by Leon T. Knauer, Ronald K. Machtley, and Thomas M. Lynch; Government Institutes (1996); 620 pages

Legal Guide to Broadcast Law and Regulation; by the National Association of Broadcasters (5th ed. 1996); 700 pages

The Telecommunications Act of 1996: What …

How Far Is Too Far? The Line Between "Offensive" And "Indecent" Speech, Milagros Rivera-Sanchez

Federal Communications Law Journal

Defining "indecency" in the context of radio broadcast seems quite a chore. While the Federal Communications Commission has struggled to set fbrth workable guidelines for "indecency," a great deal of uncertainty continues to surround broadcasters. Recognizing this confusion, the article surveys indecency complaints which were made to the FCC between 1989 and 1995 and eventually dismissed. An analysis of cases which the FCC fbund "not actionably indecent" helps delineate the FCC's decency standard. Dismissed cases are also compared and contrasted with cases in which the FCC took action against a broadcaster

Regulating Competition In The Interexchange Telecommunications Market: The Dominant/Nondominant Carrier Approach And The Evolution Of Forbearance, Scott M. Schoenwald

Federal Communications Law Journal

Although significant competition began to develop in the interexchange market during the mid-twentieth century, the Federal Communications Commission did not undertake a meaningful effort to regulate competitive forces until it commenced its Competitive Carrier rulemaking in 1979. This proceeding, which adopted a market power approach to rate, tariff, and facilities regulation in order to enhance competition, service diversity, and consumer welfare, constituted a fundamental change in the Commission's monopoly-based regulatory approach to telecommunications. The author examines the market power approach to the regulation of competition in the interexchange telecommunications market recently adopted by the FCC, with an emphasis on the …

Do You Feel The Sunshine? Government In The Sunshine Act: Its Objectives, Goals, And Effect On The Fcc And You, Kathy Bradley

Federal Communications Law Journal

This Note posits that the Sunshine Act should be narrowed to allow the FCC to operate in the same way as Congress and the Federal courts. The FCC should be allowed to engage in open and frank discussion of issues facing the Commission without rigid restrictions on collegial conversation between Commission members.

Hostile Tender Offers For Companies Holding Licenses Issued By The Federal Communications Commission, Stephen F. Sewell

Federal Communications Law Journal

When a tender offer to acquire a company is made, those making the tender offer will have to overcome a number of regulatory hurdles. The number of hurdles multiply, however, when the offer is hostile and the target company holds licenses issued by the FCC. The article sketches the FCC's response to hostile tender offers for companies holding FCC licenses, specifically discussing the Commission's adoption of procedures in 1985 to address hostile tender offers. While these provisions provided needed clarification, the authority of the FCC to implement these provisions and the effectiveness of them as a matter of policy have …

The Telecommunications Act Of 1996, Thomas G. Krattenmaker

Federal Communications Law Journal

The author discusses the primary motivating factors behind the 1996 Telecommunications Act, examines how these factors influenced the final law, and critiques the Act by examining whether it is likely to advance public interest goals. Congress designed the Act to address two problems: "technological convergence" and "legal balkanization." The Act attempts to remedy these problems by: (1) tearing down entry barriers so that legal balkanization no longer stands in the path of technological convergence; (2) changing the mandate of the FCC from deciding who should enter the market to monitoring the conditions under which entry takes place in order to …

A Return To Written Consent: A Proposal To The Fcc To Eliminate Slamming, Nicole C. Daniel

Federal Communications Law Journal

The FCC is charged with the task of encouraging competition in the telecommunications industry, yet it must also assure that competition remains free and fair to consumers. Various long-distance providers are taking advantage of their deregulated freedom by engaging in "slamming." The author proposes a more effective form of consumer protection through the return of a short-lived FCC rule which required written customer authorization before the customer's long-distance service could be switched.

The First Amendment Status Of Commercial Speech: Why The Fcc Regulations Implementing The Telephone Consumer Protection Act Of 1991 Are Unconstitutional, Deborah L. Hamilton

Michigan Law Review

This Note considers the constitutionality of the FCC's regulations implementing the no-recorded-message provision of the 1991 TCPA and concludes that they violate the First Amendment because they impermissibly distinguish between commercial and noncommercial speech. Part I explains the structure of the FCC's recorded-message regulations and demonstrates that the regulations explicitly distinguish commercial recorded messages from other recorded messages. Part II examines First Amendment protection for commercial speech in light of three 1993 Supreme Court decisions that restructured commercial speech doctrine by holding that the government can single out commercial speech for regulation only in response to a distinct harm arising …

The Fcc's Minority Ownership Policies From Broadcasting To Pcs, Antoinette Cook Bush, Marc S. Martin

Federal Communications Law Journal

The Federal Communication Commission's (FCC's) proposed minority preference scheme for broadcast spectrum allocation has been called into question in the wake of the Supreme Court(s recent decision in Adarand Constructors, Inc. v. Pena. The Authors begin by discussing the development of minority preference schemes in the 1970s and 1980s and the changes in the methods through which the FCC has awarded broadcast licenses. In 1993, the FCC was granted the authority to auction spectrum allocation, provided that the FCC ensured the economic opportunity of minority-owned business under such a competitive bidding regulatory regime. However, this grant of authority presented …

Common Carrier Regulation Of Telecommunications Contracts And The Private Carrier Alternative, Peter K. Pitsch, Arthur W. Bresnahan

Federal Communications Law Journal

The Communications Act of 1934 requires, among other things, that telephone companies as "common carriers" make their services available to the general public at affordable rates. The Federal Communications Commission (FCC) has the authority to classify telephone services as common carriers as well as the ability to remove common carrier regulation to promote competition, satisfy consumer demand for individually tailored offerings, and avoid unnecessary regulatory costs. The Authors of this Article believe that the FCC should remove the common carrier regulation from certain long-distance service contracts and that such regulation is consistent with the deregulatory aims of the recent Telecommunications …

Mergers In Mobile Telecommunications Services: A Primer On The Analysis Of Their Competitive Effects, John W. Berresford

Federal Communications Law Journal

Mobile telecommunications businesses are undergoing an unprecedented period of mergers which may result in a national network for Personal Communications Services. All of these transactions require the approval of the Federal Communications Commission (FCC), which is in the process of issuing thousands of local, regional, and nationwide licenses. The FCC grants the licenses under "the public interest" standard of the Communications Act of 1934, which requires an analysis of each proposed merger's effect on competition.

The Author begins his description of the analytic framework used by the FCC by describing its variables. Part I describes the "product market," which must …

Federal Broadband Law, John Thorne, Michael K. Kellog, Peter W. Huber, Jeffrey A. Wolfson

Richmond Journal of Law & Technology

The authors of this book have brought together a vast and varied array of experience. Mr. Thorne is the Vice President & Associate General Counsel for Bell Atlantic; Mr. Huber is a Senior Fellow at the Manhattan Institute for Policy Research; and Mr. Kellogg is a Partner at Kellogg, Huber, Hansen & Todd. A reader will find the occasional use of technical jargon, such as "domsats" (domestic satellites), "coax" (coaxial cable), and "syndex" rules (syndicated exclusivity rules to protect syndicated, non-network programming) to be somewhat confusing. "Telcos" and "cablecos" are telephone and cable companies, respectively. Overall, however, technical jargon is …

Regulating Indecent Broadcasting: Setting Sail From Harbors Or Sunk By The V-Chip?, Brett Ferenchak

University of Richmond Law Review

"Family values" has become a familiar phrase in all arenas of American life. As a result of the increasing concern over family values in broadcasting, the religious right, as well as the liberal left, have tried to stay the progression of moral decadence in our youth. The concerns have been directed towards violent, sexual and vulgar content in radio, television, and films.

Welcoming Remarks And Statement Of The Issues, Fred H. Cate

Federal Communications Law Journal

The creation, manipulation, transmission, storage, and use of information constitute the United States' and the world's largest economic sector, affecting almost every aspect of business, education, government, and entertainment. The convener of From Conduit to Content: The Emergence of Information Policy and Law introduces The Annenberg Washington Program forum by noting the proliferation of information technologies and services, the diversity of industries and interests affected, and the number of government entities with jurisdiction, that contribute to both the complexity and the importance of information policy making.

From Conduit to Content: The Emergence of Information Policy and Law. The Annenberg Washington …

The Information Highway Must Pay Its Way Through Cities: A Discussion Of The Authority Of State And Local Governments To Be Compensated For The Use Of Public Rights-Of-Way, Clarence A. West

Michigan Telecommunications & Technology Law Review

In the ever-changing telecommunications industry there appears to be an enormous amount of confusion not only as to the appropriate amount of compensation chargeable to the users of public rights-of-way, but also as to the very authority of state and local governments to require compensation. This was not always the case. It has long been a well-settled legal principle that local governments may receive reasonable "rental" compensation from private commercial entities for their use of local public property for private economic gain, even where federal statutory law restricts local governments from denying access to rights-of-way for telecommunications services. For example, …

Unconstitutional Telco-Cable Cross-Ownership Ban: It Seemed Like A Good Idea At The Time, Arthur Bresnahan

Michigan Telecommunications & Technology Law Review

This article is a survey of the law regarding the federal government's ability to regulate a telephone company's provision of video programming to subscribers in its service area. Part I of the article is a history of the telco-cable cross-ownership ban. Part II is an analysis of the cases striking down the ban, exploring the rationale of these cases on a consolidated basis. Part III is a summary of the applicable standards by which to evaluate future attempts by Congress or the FCC to regulate telephone companies' provision of video programming.

Give Peace A Chance: Fcc-State Relations After California Iii, Jonathan Jacob Nadler

Federal Communications Law Journal

The Communications Act of 1934 established a dual regulatory scheme, whereby the FCC has authority over interstate telecommunications service, while the states retain authority over purely intrastate telecommunications. This has led to a "border war" between the FCC and the states over exactly where the dividing line between their respective regulatory spheres lies. They have also clashed over the scope of permissible FCC preemption of state regulatory authority when that authority conflicts with federal policies. After twenty years of conflict, however, three recent appellate decisions may have provided an opportunity to bring the conflict to an end by clarifying both …

Vertical Integration And Program Access In The Cable Television Industry, David Waterman

Federal Communications Law Journal

As a result of the 1992 Cable Television Act, the FCC set out regulations intended to encourage competition to established cable operators by insuring that alternative multichannel video programming distributors (MVPDs), such as MMDS, SMATV, DBS, and "overbuilt" cable systems have access to programming on the same terms and conditions as established cable operators. The FCC's specific regulations, however, apply only to program suppliers in which any cable operator has a 5 percent or greater equity interest. These vertically integrated programmers are prohibited from any price discrimination in any market (except for differences the programmer can justify on the basis …

Flag On The Play? The Siphoning Effect On Sports Television, Phillip M. Cox Ii

Federal Communications Law Journal

The tradition of watching the Sunday afternoon football game in front of the television began in 1939. Since then, sports broadcasting has become one of the most powerful revenue-building tools for both media and sports leagues alike. Sports programming is increasingly available only through cable and pay-per-view television, which limits viewers' access to free broadcast televised sporting events. Legislators have now directed the Federal Communications Commission to study the effects of paid access to sports broadcasts, with an eye toward protecting viewers' rights to free access to sports on television.

This Note explains the impact of the Sports Broadcasting Act …

The Challenge Of Choice, Richard E. Wiley

Federal Communications Law Journal

No abstract provided.

Deregulating The Second Republic, Andrew C. Barrett

Federal Communications Law Journal

No abstract provided.

Reflections On The Sixtieth Anniversary Of The Communications Act Of 1934, Stanley S. Hubbard

Federal Communications Law Journal

No abstract provided.