Telecommunications Law Overview<br />January 27, 2011 – Professor Jack Lerner<br />Guest lecturer: Lisa Borodkin<br />
Background - Radio<br />Ship to Ship Radiotelegraphy (37 Stat. 302 1912)<br />Radio Act of 1928<br />
Communications Act of 1934<br />Created FCC<br />5 Commissioners<br />Appointed by the President<br />One chief<br />
Expansion to Television <br />The FTC Act was held to cover television in the 1950s<br />Broadcast<br />Cable<br />Satelli...
Title III Broadcast regulation<br />To grant licenses to promote “public convenience, interest or necessity.” 47 U.S.C. § ...
Red Lion Broadcasting Co. V. FCC, 395 U.S. 367 (1969)<br />First Amendment rights<br />“personal attack” rule<br />1 week ...
Common Carrier/Enhanced Services Distinction<br />Basic Services – “Plain Old Fashioned Telephone” regulated tariffs<br />...
MCI v. AT&T, 512 U.S. 218 (1994)<br />Found that the FCC could not use discretion to tailor the Act and apply it to non-do...
Rationale of the 1996 Act<br />Reduce barriers to entry, deregulate and promote competition<br />Added new sections 251 to...
Title II of the 1996 Act<br />8 year limit on broadcast license (shortened from 15) Section 203<br />Allows for reconsider...
Unbundling necessary network elements requirement<br />Network elements are the physical wire loop from the telephone exch...
FCC’s Power - to Revoke License<br />False statements<br />Failed to operate within license<br />Failed to provide access ...
Satellite – Section 205<br />Jurisdiction over direct-to-home satellite<br />Criminalizes interception and decryption of d...
V-Chip technology -1988<br />Requires tvs greater than 13” to have V-chip technology to allow parents to block out violent...
Trends – Deregulation because scarcity less of an issue<br />Light regulation of IP-based services<br />Packet-switching t...
Network self-governance<br />ICAAN – Network solutions<br />Dispute resolution over domain names<br />TLD Registrars<br />...
Private Rights of Action<br />Violation of 47 U.S.C. Section 605<br />Violation of 47 U.S.C. Section 553<br />
IPTV Issues<br />Google TV<br />Apple TV<br />Content Providers under no obligation to provide content<br />Hulu<br />Fox ...
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01 27 11 telecom law

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  • Rationale: Allocation of scarce spectrumElectronic Media Regulation History• Wireless Ship Act of 1910• Radio Act of 1912, prompted by Titanic disaster• Radio Act of 1927, establishing the Federal Radio Commission
  • • Communications Act of 1934, establishing the Federal Communications CommissionFederal Communications Commission• Commissioners–5 commissioners, 5-year terms–President appoints, U.S. Senate confirms–No more than 3 commissioners from same political partyFederal Communications Commission•
  • Regulates technologies using the electromagnetic spectrum– e.g., radio, TV, cable, satellite•Regulates wireline and wireless long-distance phone companiesBroadcast Regulation•Spectrum scarcity•Broadcast media are pervasive•Radio, TV impact on audiences, particularly childrenPolitical Broadcasting• Section 315 of Communications Act of 1934–When one legally qualified candidate for an elective office uses a radio or TV station or cable system–Any other legally qualified candidate for the same office may ask for equal opportunity to use the station or system• Equal opportunity is chance to reach approximately same type and size of audience as opponent hadPolitical Broadcasting• Legally qualified candidate–Legally qualified to hold office, and–Publicly announced as candidate, or active write-in candidatePolitical Broadcasting•Using a broadcast station or cable system–The candidate, the candidate’s picture or the candidate’s voice being seen or heard–Candidate need not discuss politicsPolitical Broadcasting•Exceptions to the use rule–Regularly scheduled newscast–Regularly scheduled news interview program–Coverage of bona fide news event, including candidate debates–News documentaryPolitical Broadcasting• Candidate must ask for equal opportunity• Station or system must keep publicly-available records of political uses Political Broadcasting• Politicians must be charged lowest unit rate–Lowest advertising rate station or system charges–During period 60 days before general elections and 45 days before primary elections• Outside the 60-day and 45-day periods, politicians must be charged rates comparable to any other advertiserPolitical Broadcasting•Stations and systems cannot censor or edit political advertisementsPolitical Broadcasting•Section 312(a)(7) of the Communications Act of 1934•Broadcast stations must provide reasonable access to candidates for federal officesChildren’s Programming• Commercial TV stations must provide programming for children meeting their intellectual and social/emotional needs–3 hours per week–At least 30-minute long programs–Programs scheduled weekly–Programs broadcast between 7 a.m. and 10 p.m.Broadcast Licensing• Must have FCC license to broadcast on radio or TV• Must meet certain criteria to obtain licenseCable TV Regulation• Cable’s First Amendment rights–Content-based regulations are tested under strict-scrutiny analysis–Content-neutral regulations are tested under intermediate-scrutiny analysisCable TV Regulation• Cable Franchising–Franchise is required to provide cable service–Franchise is granted by franchising authority• Franchising authority usually is the city government where cable service will be providedCable TV Regulation• Cable programming–Cable systems carry broadcast TV stations through• Must-carry, or• Retransmission consentCable TV Regulation• Cable programming: Most cable systems provide–Public, educational or governmental (PEG) channels–Commercial leased access channelsInternet Regulation•The First Amendment protects Internet content as completely as it does print media content
  • Circuit split can be resolved by the Supreme Court or Amending the Statute
  • 01 27 11 telecom law

    1. 1. Telecommunications Law Overview<br />January 27, 2011 – Professor Jack Lerner<br />Guest lecturer: Lisa Borodkin<br />
    2. 2. Background - Radio<br />Ship to Ship Radiotelegraphy (37 Stat. 302 1912)<br />Radio Act of 1928<br />
    3. 3. Communications Act of 1934<br />Created FCC<br />5 Commissioners<br />Appointed by the President<br />One chief<br />
    4. 4. Expansion to Television <br />The FTC Act was held to cover television in the 1950s<br />Broadcast<br />Cable<br />Satellite<br />IPTV<br />“known or unknown, hereafter devised”<br />
    5. 5. Title III Broadcast regulation<br />To grant licenses to promote “public convenience, interest or necessity.” 47 U.S.C. § 307(2), 309(a) <br />Prescribe the nature of service<br />Assign Frequencies<br />Determine location of stations<br />Prescribe qualifications of station operators<br />No License can be granted to a foreign citizen – (310(a),(b))<br />
    6. 6. Red Lion Broadcasting Co. V. FCC, 395 U.S. 367 (1969)<br />First Amendment rights<br />“personal attack” rule<br />1 week to respond<br />Rationale was dominance of broadcast media and ability to drown out other voices<br />
    7. 7. Common Carrier/Enhanced Services Distinction<br />Basic Services – “Plain Old Fashioned Telephone” regulated tariffs<br />Anything else, circa 1980 – “Enhanced” not regulated<br />To be enhanced, can merely be subscriber interaction with stored information – e.g. 976 billing service for adult telephone service<br />Enhanced services were deregulated and approved by the 11th Circuit – 1982<br />But the 9th Circuit found preemption invalid - 1990<br />
    8. 8. MCI v. AT&T, 512 U.S. 218 (1994)<br />Found that the FCC could not use discretion to tailor the Act and apply it to non-dominant exchange carriers like MCI<br />One a service was found to have common carrier status, the full regulation of the Act applied, including tariff regulation<br />
    9. 9. Rationale of the 1996 Act<br />Reduce barriers to entry, deregulate and promote competition<br />Added new sections 251 to 261 to Title II<br />Imposed duties on Incumbent Local Exchange Carriers (“ILEC”)<br />Duty to interconnect<br />Duty to resell on nondiscriminatory basis<br />Duty to share networks<br />
    10. 10. Title II of the 1996 Act<br />8 year limit on broadcast license (shortened from 15) Section 203<br />Allows for reconsideration of incumbent without considering competing applications (Sec. 204)<br />Lapse if broadcaster fails to transmit for 1 year<br />
    11. 11. Unbundling necessary network elements requirement<br />Network elements are the physical wire loop from the telephone exchange to the customer’s premises<br />Think about competition for long distance services<br />
    12. 12. FCC’s Power - to Revoke License<br />False statements<br />Failed to operate within license<br />Failed to provide access to political candidates<br />Used license to distribute controlled substance<br />
    13. 13. Satellite – Section 205<br />Jurisdiction over direct-to-home satellite<br />Criminalizes interception and decryption of direct to home satellite broadcast<br />
    14. 14. V-Chip technology -1988<br />Requires tvs greater than 13” to have V-chip technology to allow parents to block out violent, sexual or other programming<br />
    15. 15. Trends – Deregulation because scarcity less of an issue<br />Light regulation of IP-based services<br />Packet-switching technology replacing circuit switched<br />Reno v. ACLU, 521 U.S. 844 (1997)<br />Refused to apply Red Lion to the Internet<br />Because it was not characterized by scarcity<br />Struck down part of the Communications Decency Act as unconstitutional (Section 230)<br />
    16. 16. Network self-governance<br />ICAAN – Network solutions<br />Dispute resolution over domain names<br />TLD Registrars<br />Enforcement Issues<br />Conflict of laws - .ly<br />COICA – U.S. Customs<br />
    17. 17. Private Rights of Action<br />Violation of 47 U.S.C. Section 605<br />Violation of 47 U.S.C. Section 553<br />
    18. 18. IPTV Issues<br />Google TV<br />Apple TV<br />Content Providers under no obligation to provide content<br />Hulu<br />Fox withholding content from IPTV<br />

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