Telecommunications

Law OverviewJanuary 27, 2011 – Professor Jack Lerner

Guest lecturer: Lisa Borodkin

Background - Radio

Ship to Ship Radiotelegraphy (37 Stat. 302 1912)

Radio Act of 1928

Communications Act of

1934

Created FCC

5 Commissioners

Appointed by the President

One chief

Expansion to Television

The FTC Act was held to cover television in the 1950s

Broadcast

Cable

Satellite

IPTV

“known or unknown, hereafter devised”

Title III Broadcast regulation

To grant licenses to promote “public convenience, interest or necessity.” 47 U.S.C. §307(2), 309(a)

Prescribe the nature of service

Assign Frequencies

Determine location of stations

Prescribe qualifications of station operators

No License can be granted to a foreign citizen –(310(a),(b))

Red Lion Broadcasting Co.

V. FCC, 395 U.S. 367 (1969)

First Amendment rights

“personal attack” rule

1 week to respond

Rationale was dominance of broadcast media

and ability to drown out other voices

Common Carrier/Enhanced

Services Distinction

Basic Services – “Plain Old Fashioned Telephone” regulated tariffs

Anything else, circa 1980 – “Enhanced” not regulated

To be enhanced, can merely be subscriber interaction with stored information – e.g. 976 billing service for adult telephone service

Enhanced services were deregulated and approved by the 11th Circuit – 1982

But the 9th Circuit found preemption invalid - 1990

MCI v. AT&T, 512 U.S. 218

(1994)

Found that the FCC could not use discretion to tailor the Act and apply it to non-dominant

exchange carriers like MCI

One a service was found to have common

carrier status, the full regulation of the Act applied, including tariff regulation

Rationale of the 1996 Act

Reduce barriers to entry, deregulate and

promote competition

Added new sections 251 to 261 to Title II

Imposed duties on Incumbent Local Exchange

Carriers (“ILEC”)

Duty to interconnect

Duty to resell on nondiscriminatory basis

Duty to share networks

Title II of the 1996 Act

8 year limit on broadcast license (shortened from

15) Section 203

Allows for reconsideration of incumbent without

considering competing applications (Sec. 204)

Lapse if broadcaster fails to transmit for 1 year

Unbundling necessary

network elements

requirement

Network elements are the physical wire loop from the telephone exchange to the customer’s

premises

Think about competition for long distance

services

FCC’s Power - to Revoke

License

False statements

Failed to operate within license

Failed to provide access to political candidates

Used license to distribute controlled substance

Satellite – Section 205

Jurisdiction over direct-to-home satellite

Criminalizes interception and decryption of direct

to home satellite broadcast

V-Chip technology -1988

Requires tvs greater than 13” to have V-chip technology to allow parents to block out violent,

sexual or other programming

Trends – Deregulation

because scarcity less of an

issue

Light regulation of IP-based services

Packet-switching technology replacing circuit

switched

Reno v. ACLU, 521 U.S. 844 (1997)

Refused to apply Red Lion to the Internet

Because it was not characterized by scarcity

Struck down part of the Communications Decency

Act as unconstitutional (Section 230)

Network self-governance

ICAAN – Network solutions

Dispute resolution over domain names

TLD Registrars

Enforcement Issues

Conflict of laws - .ly

COICA – U.S. Customs

Private Rights of Action

Violation of 47 U.S.C. Section 605

Violation of 47 U.S.C. Section 553

IPTV Issues

Google TV

Apple TV

Content Providers under no obligation to provide

content

Hulu

Fox withholding content from IPTV