Consumer Protection Law Commons^™

Sobriety Test: The Court Walks The Central Hudson Line Once Again In 44 Liquormart, But Passes On A New First Amendment Review, Aaron A. Schmoll

Federal Communications Law Journal

In 1980 the Supreme Court decided Central Hudson and, in so doing, articulated the parameters of the modern commercial speech doctrine. In providing a four-part test to determine the validity of government efforts to restrict commercial speech, the Court engaged in "intermediate scrutiny" and created the expectation among free speech advocates that the Court was finally ready to provide higher measure of constitutional protection to commercial speech. In the nearly fifteen years after Central Hudson, these advocates have been disappointed as the Court has inconsistently weighed the factors that comprise the test. The opportunity to adopt a less- manipulative …

Networked Health Information: Assuring Quality Control On The Internet, Kristin B. Keltner

Federal Communications Law Journal

The Clinton Administration's Health Information and Applications Working Group promotes networked health information provided to all citizens through the Internet as one way to lower health care costs while improving the health of Americans. Managed care organizations and private health information providers already use the World Wide Web to disseminate consumer health information to broad segments of society. No standards exist to ensure that the information these Web sites carry is accurate and otherwise free from corruption. Disclaimers as to the reliability of the information as well as to the responsibility of the information provider for any harm caused by …

The Information Superhighway: Trolls At The Tollgate, Charles M. Oliver

Federal Communications Law Journal

Prior to the passage of the 1996 Telecommunications Act, policymakers sought funding and regulatory mechanisms capable of fulfilling the vision of an Information Superhighway. Vice President Gore, the Clinton Administration's point person on the issue, initially proposed assessing fees on other sectors of the telecommunications industry to fund construction. Meanwhile, conservatives asserted that deregulation of the industry would achieve the desired result. A compromise ultimately was reached: the 1996 Act requires local exchange carriers to unbundle their networks and provide access at a reasonable cost to competitors. The use of regulatory formulas in lieu of taxes to subsidize a national …

The Telecommunications Act Of 1996: Codifying The Digital Divide, Allen S. Hammond Iv

Federal Communications Law Journal

The Telecommunications Act of 1996 purports to ensure every American eventual access to advanced telecommunications networks and services, and more immediate access to basic telephone networks and services. This access is essential because it determines the ease with which Americans can acquire an education, obtain employment, control financial affairs, access emergency assistance, and participate in the political process. The interpretation and implementation of the 1996 Act is critical because there is an imminent danger that a large portion of society— in inner cities, near suburbs, and small towns— not be connected to the "national electronic nervous system." To ensure that …

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.

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 …

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.

Bankruptcy In The Seventh Circuit: 1996, Douglass G. Boshkoff

Articles by Maurer Faculty

No abstract provided.

Reconsidering Retransmission Consent: An Examination Of The Retransmission Consent Provision (47 U.S.C. § 325(B)) Of The 1992 Cable Act, Charles Lubinsky

Federal Communications Law Journal

This article examines the legislative and economic history of the retransmission consent provision in the 1992 Cable Act. Retransmission consent provisions in the 1992 Cable Act allow broadcasters to enter into negotiations with cable operators regarding retransmission of their broadcast signal. The 1992 Cable Act requires broadcasters to choose between retransmission consent and must-carry provisions every three years. The first election period ended in October 1996 and a new election period begins January 1, 1997. Retransmission consent has had a noticeable effect on the evolution of cable television broadcasting, although it is arguably unclear whether retransmission consent has addressed the …

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.

Cooperative Standard Setting: The Road To Compatibility Or Deadlock? The Nafta's Transformation Of The Telecommunications Industry, Karen E. Lee

Federal Communications Law Journal

In an effort to reduce nontariff barriers, the North American Free Trade Agreement (NAFTA) directs its three member nations to utilize product standards set by international standard-setting organizations. What were once considered "permissible standards" are now mandatory standards as Articles 904-906 of the NAFTA mandate the telecommunications industry to adopt cooperative standard-setting by these organizations as the sole method to achieve standardization. Currently, the International Telecommunications Organization and the International Organization for Standardization are the two principal cooperative standardization organizations in the telecommunications industry.

This Note argues that the NAFTA should allow members to "opt out" of the requirement for …

Your Life As An Open Book: Has Technology Rendered Personal Privacy Virtually Obsolete?, Sandra Byrd Peterson

Federal Communications Law Journal

As society becomes increasingly automated, the ability of individuals to protect their "information privacy" is practically nonexistent. Information that was once kept on paper in filing cabinets is now on-line in computer databases. At the touch of a computer key, a complete stranger can conveniently access and compile from a variety of different sources a dossier of intimate, personal information about people without their knowledge. Perhaps more shocking is the current lack of legal recourse available to contest the nonconsensual use of personal data.

In this Note, the Author examines the currently loose constitutional and common-law protections and suggests strategies …

In God We Trust; All Others Who Enter This Store Are Subject To Surveillance, Karen A. Springer

Federal Communications Law Journal

Until recently, Americans could enjoy a quiet conversation over a doughnut and a cup of coffee with the knowledge that the conversation was indeed private. Dramatically, the illusion broke: the "walls have ears" at some Dunkin' Donuts shops in the form of hidden microphones. Employees and management actually listened to customers' "coffee talk." This Note analyzes the requirements of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 and concludes that the surreptitious recording of customers' oral communications violates the spirit and letter of the Act.

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 …

Reflections On The Sixtieth Anniversary Of The Communications Act, Robert E. Allen

Federal Communications Law Journal

No abstract provided.

Privacy Vs. Convenience: The Benefits And Drawbacks Of Tax System Modernization, E. Maria Grace

Federal Communications Law Journal

The Internal Revenue Service has launched the Tax System Modernization (TSM) program, a $23 billion plan to modernize its computer and information systems. TSM will be the largest computer upgrade ever undertaken by the federal government. Like any other computer network, TSM will inevitably be threatened by computer viruses, professional eavesdroppers, power outages, natural disasters, and human error. Given the sensitive nature of tax returns, the IRS has the difficult task of modernizing its data collection procedures and telecommunications facilities without risking the privacy of taxpayers and offending the security measures required by the Privacy Act of 1974, Computer Security …

Changes That Challenge The Soul, Herbert A. Terry

Federal Communications Law Journal

Symposium: The Transformation of Television News

Cable Television Subscriber Equipment: Lessons From The Common Carrier Experience, David Alan Nall

Federal Communications Law Journal

Perhaps the most significant changes resulting from the Cable Television Consumer Protection and Competition Act of 1992 will be those affecting equipment on subscriber's premises. The 1992 Cable Act differentiates cable equipment and cable services. The Author discusses the framework of the equipment provisions of the Cable Act, specifically regarding cable equipment rates, cable home wiring, and consumer electronics compatibility. He relates the history of the customer-premises (CPE) unbundling through the Computer II decision and post-Computer II developments, then proposes that the FCC could apply its CPE precedents to cable equipment.

Article Digest

Federal Communications Law Journal

In many communities across the nation cable subscribers depend on government-owned cable television systems for their communication services. This phenomenon may have started out to be fairly insignificant, but as a result of the cable explosion, government ownership of cable systems presents a threat to free expression. Governmental overbuilding and direct competition with private cable service providers have been the subject of unsuccessful First Amendment challenges. The threat of government control of cable systems, though, is potentially dramatic and poses serious First Amendment questions. The Author concludes that private ownership should be encouraged, and public ownership should only be allowed …

Book Review. How Consumer Remedies Fail, Bryant G. Garth

Articles by Maurer Faculty

No abstract provided.

Consumer Actions Against Unfair Or Deceptive Acts Or Practices: The Private Uses Of Federal Trade Commission Jurisprudence, Marshall A. Leaffer, Michael H. Lipson

Articles by Maurer Faculty

No abstract provided.

Consumer Warranty Or Insurance Contract? A View Towards A Rational State Regulatory Policy, Doyal Mclemore Jr.

Indiana Law Journal

No abstract provided.

The Magnuson-Moss Warranty Act: Consumer Information And Warranty Regulation, Stephen W. Lee

Indiana Law Journal

No abstract provided.

State Consumer Protection In A Federal System, Robert M. O'Neil

Articles by Maurer Faculty

Increasing interest in consumerism has brought intensified efforts at every level of government to protect the consumer. While federal regulation seems desirable for nationally marketed products and interstate activities, the states retain the duty to protect the health and safety of their citizens. Where state regulation is more restrictive than concurrent federal regulation, however, the constitutional issue of preemption arises.

This Article analyzes the factors which have influenced the courts in resolving conflicts between federal and state regulation in the consumer field. Emphasizing the need for concurrent regulation, the author formulates guidelines by which the courts can examine the purposes …

Cure And Revocation For Quality Defects: The Utility Of Bargains, Alan Schwartz

Articles by Maurer Faculty

No abstract provided.

Private Markets And Social Control, Lloyd D. Orr

IUSTITIA

The continuing failure of society to deal adequately with its problems has led to criticism that goes beyond the imperfections of a fundamentally sound social organization. Individual economic incentive and private markets, the basics of our economic organization, are condemned as inherently destructive of desirable social goals. It may be that such criticism is naive with respect to the basic history of economic organization and the prospects for meaningful alternatives. It also may be that the "solutions" offered are frequently more authoritarian than the critics allege the present system to be. We are still left to ponder the vital, long-standing, …

Seller Unequal Bargaining Power And The Judicial Process, Alan Schwartz

Indiana Law Journal

No abstract provided.

Optimality And The Cutoff Of Defenses Against Financers Of Consumer Sales, Alan Schwartz

Articles by Maurer Faculty

No abstract provided.

The Private Law Treatment Of Defective Products In Sales Situations, Alan Schwartz

Indiana Law Journal

No abstract provided.