Essay

The Gore Commission Ten Years Later: Reimagining the Public Interest Standard in an Era of Spectrum Abundance
Gigi Sohn
When Congress passed the Telecommunications Act of 1996 (“1996 Act”) it gave the Federal Communications Commission (“FCC” or “Commission”) discretion to grant over-the-air broadcasters temporary licenses for additional spectrum in order to assist their transition to digital broadcasting. The following year, the FCC voted to license the additional spectrum to broadcasters conditioned on eligibility requirements, construction schedules, and flexible use of the spectrum. The FCC also set 2006 as the target year for the return of the spectrum.
However, on the issue of what the proper public interest obligations should be for digital TV broadcasters, the FCC balked, saying “[w]e are not resolving the debate today. Instead, at an appropriate time, we will issue a Notice to collect and consider all views.” The refusal to address public interest obligations caused an outrage among public interest advocates. It also garnered a strong response from critics who felt that broadcasters were given spectrum worth billions of dollars at no cost. At a minimum, the giveaway was a ten year loan with no accruing interest.
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Trademark Law and the Repercussions of Virtual Property (IRL)
Melissa Ung
Jolex—a brand of luxury watches and accessories—is a status symbol of the elite. Businessmen, wealthy socialites, and lawyers sport Jolex watches like a five-year-old showing off a new toy at playtime. The Swiss movement technology found in every Jolex watch contributes to its reputation as a prestigious brand of watch of exceptional quality. Jolex’s legal team works diligently to protect its brand, quality of workmanship, and profitability of goods by ensuring that only official Jolex watches carry the name. Its trademark and product design are registered at the Patent and Trademark Office. One day, a Jolex representative finds “Sammy’s Store of Watches” selling watches touted as “The Original Jolex” in a virtual community online. The watches are not physical, yet “Sammy’s Store” charges real money for virtual watches using the Jolex name. Jolex finds that it has no remedy under current law to prevent Sammy from selling its virtual watches, either in the form of an injunction or compensation or misappropriation of intellectual property. Does this seem fair?
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The FCC's Prohibition on Exclusive Service Contracts and Its Weak Constitutional Grounding
Matthew Peurach
If an oil company wanted to open a refinery on a piece of property, it would want to be the only company allowed to extract oil from that land. It would hardly be beneficial to spend millions of dollars on satisfying the zoning requirements, obtaining favorable lease provisions from the property developer, installing the required infrastructure, and hiring thousands of employees, only to have another oil company establish the exact same operation on the same piece of property. So, to shield the business before making such a significant investment, the company likely would enter into an exclusive contract with the property developer. Done correctly, this exclusive arrangement would contractually ensure that it would be the sole oil refiner on the property. In return for such an auspicious lease provision, the property developer would likely have a legitimate justification for charging a higher monthly rent, which the company might consider well worthwhile.
However, what if the federal government decided that energy management was in the public interest? The government might attempt to invalidate the exclusive contract with the property developer retroactively. This action, in turn, would force the company to increase the price of oil per barrel so that it could still turn a profit, or at least recover its sunken investment. The government’s prohibition on exclusive arrangements between property developers and oil refiners, however, would likely implicate the company’s fundamental property rights as a leaseholder.
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Communications Regulation–Ripe for Reform
Kevin Ryan
Nearly thirty years after early predictions and much fanfare, convergence has finally arrived in the communications industry. Now, consumers can watch television programs on computers and mobile phones and read the New York Times on their digital music player. The mantra of the convergence paradigm shift is whatever content you want, whenever you want it, and on whatever device you want it. On-demand video services and Internet-based video may be replacing the top-down model of traditional over-the-air television broadcasting. Traditional landline telephone companies are bleeding customers who have become un-tethered—relying only on their mobile phones. Satellite radio and other Internet-based music sources, such as podcasting, are supplementing traditional AM and FM broadcast radio industry formats. While convergence can be observed plainly in today’s consumer marketplace, the underlying technological cause making convergence possible is the digitalizationof the content consumers receive and send: voice, data, audio, and video.
However, this radical shift in the capability of devices, transmission methods, and content creation has not spurred a significant shift in the regulatory framework of the Federal Communications Commission (“FCC” or “Commission”), which oversees the communications industry. Both the Commission’s bureaucratic structure and regulatory framework remain industry-based.
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Rumor Has It that Non-Celebrity Gossip Web Site Operators are Overestimating their Immunity Under the Communications Decency Act
Matthew Minora
Imagine a beautiful afternoon on a college campus in the United States. One student, Jane Doe, is walking to her first class of the day. Strolling across the green, well-manicured lawns, her mind is focused on upcoming assignments and plans for the weekend. Before reaching her first class, the student notices a crowd of people, including her friends and fellow classmates, gathering around a public bulletin board on campus. Her serene afternoon is shattered when she sees a large sign on that the bulletin board that reads: “Jane Doe is a whore!” The student runs through the crowd of onlookers and tries to tear down the sign, but soon realizes that, despite her best efforts, she cannot.
The sign is affixed to the bulletin board permanently. As her eyes swell with tears, the student notices that the crowd is growing and overhears people discussing whether the statement is true. Looking for help, the student contacts the owners of the bulletin board, begging the owners to remove the sign or at least disclose who posted it, but they refuse. Frustrated, the student threatens to sue the bulletin board owners for defamation. The owners scoff at her threats and explain that they actually are protected by federal law and are not required to remove the sign. Although this may sound like a nightmare, it is happening with greater frequency on American college campuses, albeit on online bulletin boards rather than physical ones. 
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