WITH FREEDOM COMES RESPONSIBILITY: ENSURING THAT THE NEXT GENERATION OF TECHNOLOGIES IS ACCESSIBLE, USABLE, AND AFFORDABLE
William E. Kennard and Elizabeth Evans Lyle
As the communications industry continues to experience dramatic change, an increasing amount of services such as voice, data and video will all be available through the use of the Internet. The authors emphasize that now it is more important than ever that everyone has access to the technologies of tomorrow, and that no American gets left behind. The burden is on both the Commission and the communications industry to ensure that Internet accessibility is available to all communities. Kennard and Lyle believe the Commission must take an approach of avoiding regulation of new, advanced digital technologies and deregulation of existing services as they converge with new services. The result will be a changing role for the Commission, from Internet “industry regulator” to “market facilitator.” If service providers hope to flourish in such deregulation, the industry itself must implement effective changes and take steps to ensure that no American is without access. Generally, industry must adopt the concerns of the broader community as its own. More specifically, the authors indicate that industry must work to ensure accessibility, usability and affordability of Internet services. Tomorrow’s technologies must be made accessible to people with disabilities. This can be done by offering alternative text descriptions (“ALT” tags) for people with sight disabilities, closed caption and video descriptions for the deaf, and user friendly soft buttons for the hearing impaired. Technologically advanced products must be usable by consumers as well. Industry must foster a continuous dialogue with communities in order to understand the problems that the average American is facing with newer services. Support must be offered for underserved groups such as low income areas and tribal communities. Teachers must be trained to successfully integrate technology into their curriculum. And, of course, consumers with disabilities must be afforded the same technical assistance provided to the average American. Lastly, industry must work harder to provide these advancing services at an affordable cost. Government grants may provide the spark needed for a broader deployment of broadband technologies, and public-private partnerships would help industry and communities share some of the burden. Whatever the approach, however, it is clear that industry’s challenge will be working closely with government and consumers to create policy aiding the deregulation and broader deployment of services across the country.

POLES, HOLES AND CABLE OPEN ACCESS: WHERE THE GLOBAL INFORMATION SUPERHIGHWAY MEETS THE LOCAL RIGHTS-OF-WAY
Barbara S. Esbin and Gary S. Lutzker
This article examines the “convergence” of digital technologies and optical networks, which combine to create multiple communications services, such as voice, video, and data on a single network or platform. While this union of technologies aids in the transmission of desirable services, such as cable Internet access, it also creates regulatory problems for the FCC and local authorities. Esbin and Lutzker focus on the problem of categorization, and the issues involved when trying to decide whether cable internet service belongs to the class of facilities-based cable operators, or whether it is a type of telecommunications carrier. In an effort to facilitate its goal of rapid broadband deployment, the FCC has taken a “hands off” approach to this problem. The result has been a slew of inconsistent rulings between various circuits across the country. The Ninth Circuit has determined that AT&T’s @Home service is not a cable service. The Eleventh Circuit made the reverse determination, finding that cable Internet service is properly classified as cable service for the purpose of regulation. Additionally, the Fourth Circuit has even recognized another classification, information service, under which cable internet service falls. The result of these varied decisions is a similarly varied approach to regulation. Traditionally, local franchising authorities wield authority over cable service providers, while the FCC provides rulemaking and policy goals for the implementation and direction of the telecommunications industry. Recently, the FCC has begun its inquiry into this issue. The authors believe that the Commission gains more by classifying the Internet transmission services of any facilities-based carrier as a telecommunications service, despite its desire to keep a laissez-faire posture. Ultimately, the authors agree, there is a clear need for administrative policy and guidance in the cable access industry.

REGULATORY OPPORTUNISM IN TELECOMMUNICATIONS: THE UNLEVEL COMPETITIVE PLAYING FIELD
Rob Frieden
With the passage of the Telecommunications Act of 1996 (the ’96 Act), Congress envisioned a step toward engineering competition and enhancing consumer welfare by removing regulatory barriers to competition in the telecommunications industry. The result of this approach, however, coupled with the rapidly advancing technology in the telecommunications industry, is that regulation often has a hard time keeping up with industry. This “regulatory lag” often results in the exploitation of regulatory and legislative loopholes by incumbent providers and newcomers alike. This article focuses on the related concept of regulatory arbitrage, which occurs when carriers exploit differences in legislative a regulatory classifications with the goal of securing a competitive advantage. Most often, this is done by qualifying for favorable regulatory treatment while still offering the same type and quality services as other competitors in the market. Stakeholders skilled in the talent of arbitrage can take advantage by using jurisdictional loopholes, the blurring distinctions between private and common carriers, and differences in international accounting rates. The ambiguities of the ’96 Act allow such stakeholders to benefit from arbitrage without fundamentally conflicting with statute. The explosion of the Internet has produced yet another medium through which arbitrage can be achieved. While Internet telephony allows providers to present a product functionally equivalent to traditional telephony, it is treated as a service subject to little or no regulation, consistent with the purpose of the ’96 Act.

SECONDARY MARKETS IN SPECTRUM: MAKING SPECTRUM POLICY AS FLEXIBLE AS THE SPECTRUM MARKET IT MUST FOSTER
Joseph M. Ward
The electromagnetic spectrum is the range of electromagnetic radiation in our world. Many of our newest technologies (especially spectrum-hungry mobile data services) thrive on this spectrum. As the demand for new mobile services arises, however, the limited spectrum available to accommodate new technology diminishes. The FCC holds the responsibility over the method of distribution of spectrum, as well as the regulatory authority over its use. This comment focuses on the emergence of “secondary markets” as a way of increasing the efficient use of our spectrum. Secondary markets arise when the FCC assigns spectrum (through auctions), and those bidding licensees in turn lease or sell their unused portions of spectrum to third parties who will make efficient use of it. Ward argues that these secondary markets represent opportunities to make full use of the entire available spectrum. Using its power of oversight in this industry, the FCC must create rules and regulations for the guidance of licensees and their distribution to third party spectrum users. Ward examines the technical and service rules involved in this type of transaction, and the transfer of control issues that surround secondary markets. The principal concern of the Commission is to facilitate a straightforward process for spectrum exchanges while still maintaining regulatory control. This comment concludes by looking forward to the requirements and obstacles of spectrum exchanges in the future, and issues the FCC will face when confronted with a waning amount of available spectrum.

WHO KNOWS WHERE YOU ARE? PRIVACY AND WIRELESS SERVICES
Ellen Traupman
The Wireless Communications and Public Safety Act of 1999 (“1999 Act”) charged the FCC with the duty to implement enhanced wireless 9-1-1 service. One result of this legislation was enhanced 911 (“E911”) services, which allows wireless customers to receive emergency protection at any location. Such “location-based services” may also extend to services such as locating restaurants, gas stations, weather reports, and driving directions. This comment addresses the privacy concerns raised by the commercial consequences of the E911 mandate. Traupman argues that the arrival of location-based services has created an opportunity for service providers to gather location information about consumers in order to create elaborate profiles that can be used for marketing purposes. The activities of consumers in the electronic marketplace are often matched with personal information to create detailed profiles that help marketing companies predict the consumer’s tastes, needs, and purchasing habits. Profiles are then used to help companies make decisions about how best to deliver ads directly to the consumer’s specific interests. One the one hand, this practice raises serious issues about privacy and the rights of the consumers to keep their location information to themselves. Traupman points out, however, that this concern must be balanced against the public interest of releasing location-based information to emergency services, such as police, fire, or emergency medical operators. Much of the debate on this topic has centered on which services should require an “opt-in” approach, and which should require and “opt-out” approach. Opting in would require the consumers to offer their express prior consent, through oral, written, or electronic means, to releasing their location information. Opting out creates an assumption of complicity unless consumers notify the carrier of their demand to keep location information private. At the very least, it is established that carriers must provide clear and conspicuous notice of their privacy policies to end users. Moving forward, the FCC has expressed dissatisfaction in the self regulation of this industry, however there is an administrative and economic interest in allowing carriers and non-carriers to self-regulate without the burdensome interference of government officials.

ANTITRUST ANALYSIS: A ROADMAP FOR ELECTION REFORM UNDER THE FIRST AMENDMENT
Kevin Mitchell
This comment begins by arguing that recent presidential elections have come in the wake of increased campaign spending, while resulting in a significant degree of voter dissatisfaction. One explanation for this trend may be the economic deficiencies in the marketplace for political ideas. Mitchell first lays out the characteristics of any marketplace: (1) a given number of producers and consumers, (2) a given level of information available to producers and consumers, and (3) a level of entry and exit barriers ranging from low to high. Mitchell focuses on three different economic models: A perfectly competitive marketplace, and oligopolistic marketplace, and an oligopsonistic marketplace, defining the characteristics of each. Those economic concepts are then applied to the current presidential election process in order the pinpoint the deficiencies which may cause increased campaign spending and low voter approval. Using the marketplace model as a guide, Mitchell addresses the difficulty in providing all relevant information to potential consumers (voters). In the context of the election process, those who spend the most money are able to advantageously spread information favorable to their platform. In addition, the author points out the extremely high barriers to entry in an election process dominated by two major political parties. The comment concludes by offering some ideas for reform. Suggestions range from imposing ballot access restrictions, to a fifteen percent national support requirement, to imposing major campaign finance reform.