Consumer Protection Law Commons^™

Homeland Security And Wireless Telecommunications: The Continuing Evolution Of Regulation, Christopher Guttman-Mccabe, Amy Mushahwar, Patrick Murck

Federal Communications Law Journal

Since the grant of the first Commercial Mobile Radio Service ("CMRS") license over twenty years ago, the wireless industry has grown from a service of convenience to one that is indispensable. What once was a device used for sporadic phone calls now is viewed by many Americans as a source of invaluable communication and security. As the wireless industry matured, government officials turned to the mobile phone as a way to make the United States safer. E-9 11, the Communications Assistance for Law Enforcement Act ("CALEA"), Wireless Priority Service ("WPS"), and Outage Reporting all were initiated on the wireless platform …

Universal Service: Problems, Solutions, And Responsive Policies, Allen S. Hammond Iv

Federal Communications Law Journal

No abstract provided.

Nonprofit Solicitation Under The Telemarketing Sales Rule, Rita Marie Cain

Federal Communications Law Journal

In 2003, the Federal Trade Commission ("FTC") revised its Telemarketing Sales Rule ("TSR") to establish a national Do-Not-Call Registry for commercial telemarketing. Congress directed the Federal Communications Commission ("FCC") to coordinate its telemarketing regulations under the Telephone Consumer Protection Act ("TCPA") of 1991 to achieve maximum consistency between the two agencies' telemarketing restrictions. Nonprofit solicitation is exempt from the national Do-Not-Call Registry, but is covered by other provisions of the FTC rule. The TSR created a new in-house no-call list requirement and imposed additional restrictions not previously known for nonprofit solicitors. The separate nonprofit provisions of the TSR raise unique …

Wandering Along The Road To Competition And Convergence- The Changing Cmrs Roadmap, Leonard J. Kennedy, Heather A. Purcell

Federal Communications Law Journal

In this timely follow-up piece to a 1998 piece entitled A Federal Regulatory Framework that is "Hog Tight, Horse High, and Bull Strong, " the Authors of this Article revisit the progress of American commercial mobile radio services ("CMRS") proliferation and regulation. The piece expresses the concern that balkanization has continued to plague wireless regulation in the United States, as misguided legal analyses and state regulation further hinder wireless development across the nation. While the European Union has witnessed unprecedented growth in this sector, conflicting court and FCC decisions and continued federal, state, and local burdens on CMRS have placed …

Revisiting The Vast Wasteland, Newton N. Minow, Fred H. Cate

Federal Communications Law Journal

No abstract provided.

Detariffing And The Death Of The Filed Tariff Doctrine: Deregulating In The “Self” Interest, Charles H. Helein, Jonathan S. Marashlian, Loubna W. Haddad

Federal Communications Law Journal

This Article reviews the history of the FCC's detariffing efforts, addressing the major issue raised not so much by detariffing itself, but by the FCC's view of detariffing orders impact on the Filed Tariff Doctrine. Notwithstanding the existence of the Doctrine for nearly a century, the FCC, through detariffing, has declared the Doctrine dead. This Article formally opposes the FCC's declaration and suggests that the FCC's motivations behind detariffing have failed to consider, much less attempted to properly balance, the conflicting public interests involved. Comparing and contrasting the legal rights enjoyed by long-distance carriers under the Filed Tariff Doctrine to …

Indecent Exposures In An Electronic Regime, Natalie L. Regoli

Federal Communications Law Journal

As the topic of data privacy is vast and the subject of much scrutiny, this Comment focuses narrowly on commercial cyber-activities relating to the nonconsensual Internet acquisition of personally identifiable user data. Beginning with a brief examination of the technology that has exacerbated privacy law's inadequacies, it briefly discusses failed attempts to safeguard privacy rights through the market and federal agency management. It then addresses current U.S. privacy legislation and the 1995 European Privacy Directive. Finally, this Comment proposes the creation of a new legislative system to effectively combat the surreptitious collection, storage, use, and sale of personal data.

Acquisitions By Partially Privitized Firms: The Case Of Deutsche Telekom And Voicestream, J. Gregory Sidak

Federal Communications Law Journal

A recent phenomenon in competition policy is the acquisition of a private firm by an enterprise that is either wholly owned by government or in the midst of privatization. Such an acquisition poses the question of how public ownership may alter the incentives of a firm to engage in anticompetitive conduct. It also prompts one to examine the process by which such altered incentives revert, as the level of government ownership declines, to the same incentives that face purely private firms. Using Deutsche Telekom's acquisition of VoiceStream Wireless as a case study, this Article presents the economic questions relevant to …

Dial 911 And Report A Congressional Empty Promise: The Wireless Communications And Public Safety Act Of 1999, Peter P. Ten Eyck

Federal Communications Law Journal

Designed to promote the prompt deployment of a seamless emergency services infrastructure to meet the nation's safety needs, the 911 Act not only instructs the FCC to assign the abbreviated dialing code 911 for use as the universal emergency telephone number, but also directs the Commission to establish appropriate transition periods for compliance in areas without 911 service. Furthermore, the 911 Act supports individual states' efforts to develop comprehensive emergency communications. Although improving the 911 system and saving lives by developing an end-to-end emergency communications network are commendable goals, this Note argues that the anemic 911 Act is an important …

The Public Interest Standard: Is It Too Indeterminate To Be Constitutional?, Randolph J. May

Federal Communications Law Journal

This Article argues that the congressional delegation of public interest authority to the FCC likely violates the nondelegation doctrine that inheres in the constitutional separation of powers scheme and that, even if the courts do not hold the public interest delegation unconstitutional, Congress should revise the Communications Act to set forth more specific guidance for the FCC. In today’s environment of “convergence,” in which competition is flourishing across communications sectors, Congress should not shirk its responsibility to establish fundamental policy for an industry that contributes so much to the overall health of our economy. This Article argues that Congress should …

Protecting Privacy And Enabling Pharmaceutical Sales On The Internet: A Comparative Analysis Of The United States And Canada, Nicole A. Rothstein

Federal Communications Law Journal

The Internet raises enhanced and unique concerns regarding informational health privacy and Internet pharmacy sales. As technology advances and the Internet changes the way people obtain medical services and products, protecting consumers and their informational health data in online pharmaceutical transactions is paramount. This Comment charts and compares the existing legal frameworks in the United States and Canada relative to informational health privacy. Following this discussion, each legal framework comes into sharp focus with regard to Internet pharmacy sales. Ultimately, this Comment concludes that based on the highly sensitive nature of personal medical information, a baseline privacy standard should be …

From Consumers To Users: Shifting The Deeper Structures Of Regulation Toward Sustainable Commons And User Access, Yochai Benkler

Federal Communications Law Journal

No abstract provided.

Application Of The Telephone Consumer Protection Act To Intrastate Telemarketing Calls And Faxes, Hilary B. Miller, Robert R. Biggerstaff

Federal Communications Law Journal

Miller and Biggerstaff address the Telephone Consumer Protection Act of 1991 (TCPA). Specifically, they point out that because the TCPA does not preempt state law and Congress expressly intended it to coexist with state laws regulating intrastate telemarketing and fax advertising, confusion has evolved regarding the application of the TCPA to intrastate telemarketing calls and fax advertisements. This Article breaks the analysis into two questions: (1) did Congress intend intrastate calls to be covered by the statute; and (2) if Congress intended the statute to cover intrastate calls, is it constitutionally permissible for Congress to regulate calls and faxes that …

Progress And Regress On Interlata Competition, David M. Mandy

Federal Communications Law Journal

At this writing, the FCC has denied Bell Operating Company applications for entry into in-region interLATA (long-distance) markets in Oklahoma, Michigan, South Carolina, Louisiana, and on a reapplication in Louisiana; approved one application for New York; and is currently considering an application for Texas. Thus, almost four years elapsed from the passage of the Telecommunications Act of 1996 until any Bell Company received relief from the line-of-business restriction, and even now relief has been received in only one state. This Article briefly reviews the economics of Bell Company entry into interLATA markets; summarizes the reasons given by the FCC for …

Online Auction Fraud: Are The Auction Houses Doing All They Should Or Could To Stop Online Fraud?, James M. Snyder

Federal Communications Law Journal

In April 1998, the FTC released a consumer alert pertaining to the increasing problem of online auction fraud. As the number of online auction participants increased, online auction fraud was becoming more prevalent. The FTC requested comments regarding methods that would be appropriate for curbing the increase in consumer deception. Many in the online auction industry proposed voluntary self-regulation. This Note exposes the inadequacy of industry self-regulation by analogizing online auction abuse with the misuse and near downfall of the 900-number industry. This Note proposes that only a regime of strict industry guidelines that the FTC initiates will halt online …

Equity Pooling And Media Ownership, Peter Chinloy

Federal Communications Law Journal

This Article outlines a method of pooling equity for acquiring a portfolio of media properties. Each participant receives a security containing an investment return and a management right. The management right goes only to one successful bidder, offering a cash payment to other investors as an access price. By offering repeat bidding on several properties, different members of a pool achieve ownership while diversifying their risk. Alternatively, an investor not wishing management receives a higher compensating return. The procedure is particularly suited to media properties dependent on local advertising such as radio, "free" community newspapers, and television outlets. These properties …

Whither To Regulate?, Patrick A. Miles Jr.

Federal Communications Law Journal

Book Review: Public Policy Toward Cable Television: The Economics of Rate Controls, by Thomas W. Hazlett and Matthew L. Spitzer, The MIT Press and The AEI Press, 1997, 253 pages.

A Birthday Party: The Terrible Or Terrific Two’S? 1996 Federal Telecommunications Act, Kathleen Wallman

Federal Communications Law Journal

As we celebrate the second anniversary of the Telecommunications Act of 1996, we can see that the predictions of instant cross-industry competition that were made at its birth were rather euphoric. Despite the unexpected twists and turns of the first two years, there have been a number of significant market developments suggesting that the lowering of barriers that the Act effected have put things on the right course. However, the success of the Act will be rather fragile during the next few years, as it is subject to reversal by market as well as judicial forces. We should therefore continue …

The "Public Interest" Standard: The Search For The Holy Grail, Erwin G. Krasnow, Jack N. Goodman

Federal Communications Law Journal

During the last eighty years, there is likely no single area of communications policy that has generated as much scholarly discourse, judicial analysis, and political debate as has the simple directive to regulate in the "public interest." While remaining at the heart of current communications regulatory policy debate, the public interest standard has been subject to evolving, and often elusive definitions that reflect the change in American culture from generation to generation. As broadcasters begin the transition to a more flexible digital technology, there have been calls for a reexamination of the public interest standard. But the genius of the …

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.

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 …