DYNAMIC SPECTRUM POLICIES: PROMISES AND CHALLENGES
Paul J. Kolodzy, Ph.D.
Dr. Kolodzy argues, in his article for the FCC and CommLaw Conspectus Symposium on Digital Migration, that as communication technologies continue to develop in the digital era, the merging of communications and computing is opening an array of new possibilities for the use of radio frequency spectrum. In this new age of wideband, flexible, and agile spectrum systems, the author emphasizes that dynamic spectrum policies offer the potential benefits of a greater diversity of policies to match the needs of the consumer who are demanding new ways to stay informed while mobile. Those needs change with application, location, and time, as well as with the overall condition of the radio frequency environment. By allowing dynamic spectrums to flourish, there is a greater potential for higher utilization and more ingenious uses of the spectrum which will open the way for a new generation of radio transformations. However, to fully maximize the potential benefits of the spectrum, the Kolodzy emphasizes that highly encompassing metrics and new techniques for enforcement need to be developed in conjunction with new technological innovations.

BROADBAND REGULATION AT THE DEMISE OF THE 1934 ACT: THE CHALLENGE OF MUDDLING THROUGH
Winston Maxwell
Winston Maxwell argues in this Digital Migration symposium article that the European Union’s six new directives on broadband policy have established a comprehensive regulatory frame work which fully embrace convergence and leave little room for domestic interpretation or debate by Member Nations. The new directives abolish all regulatory distinctions between cable networks, telephone networks, and the Internet and place all services and networks into a single, all-encompassing, regulatory category called "electronic communications." While the new directives attempt to create a light-handed and flexible set of rules that will regulate these networks and services only to the extent necessary, the author expresses concern that national regulators in Europe will take their new-found policy tools to extend legacy regulation to the Internet. Instead, Maxwell emphasizes that regulators have to use these new regulatory tools with surgical precision, and justify their actions to the Commission and other regulators each time they apply a remedy.

BROADBAND REGULATION AT THE DEMISE OF THE 1934 ACT: THE CHALLENGE OF MUDDLING THROUGH
John T. Nakakhata
In this Symposium on Digital Migration article, the author argues that as the FCC faces a statutory environment fraught with artificial, legacy statutory distinctions which fundamentally limit opportunities for sound public policy reform just as it attempts to reform its Internet Protocol ("IP") regulatory regime. In response to this looming problem, Mr. Nakahata provides an analytical framework for policymakers to consider when examining this issue. The article delineates what is generally meant by "broadband;" discusses some of the ways in which broadband services challenge the technological assumptions underlying the Act's core statutory classifications; contrasts the legal underpinnings of the Commission's articulated Title I approach to broadband with the "telecommunications services" approach adopted by the Ninth Circuit; and reviews two examples of policy issues embedded in this debate. In proceeding with reform, the author concludes that legislators and the FCC must consider the significant role the courts will have in affirming or reversing policy choices under Title I. As such, the Commission must consider the public interest consequences of proceeding down a reform path which may be overturned by the courts.

CHATTING UP A STORM: NOAH V. AOL TIME WARNER AND EXTENDING FEDERAL CIVIL RIGHTS LIABILITY TO INTERNET CHAT ROOMS
Peter M. McCamman
In a case which raises important issues for the regulation of the Internet, the author examines Noah v. AOL Time Warner, where a plaintiff attempted to sue America Online ("AOL") for violating Title II of the Civil Rights Act ("Title II") by failing to remove hate messages in their Islamic topic chat rooms. The court held that chat rooms do not constitute a physical "place of public accommodation under Title II. The author argues that the Noah opinion correctly refrained from applying Title II to the chat room environment. Although chat rooms closely resemble traditional Title II outlets of societal interaction, they still do not adequately fit into the statutory definition of a physical "place of public accommodation." More importantly, imposing hate speech censorship duties on ISPs raises freedom of speech concerns, as chat rooms now represent a valuable forum for the public exchange of ideas. While private ISPs are free to censor postings on their own, forcing them to do so through government regulation may amount to an unconstitutional form of content regulation. McCamman concludes by pointing out that ISPs are taking increasingly proactive self-policing action by closing off Internet chat rooms to the general public in order to more effectively filter content.

WIRELESS LOCAL NUMBER PORTABILITY AND ITS EFFECT ON COMPETITION: CAN THERE BE TOO MUCH OF A GOOD THING?
Nicole B. Stach
This Comment argues that, as wireless local number portability continues to rise, the increased competition and technological advances it creates in the wireless industry will ultimately lead to a healthy and strong competitive environment in which consumers will be offered more services at lower prices. In demonstrating this position, the author examines the origins and current state of local number portability. Second, the Comment introduces the Telecommunications Act of 1996 and describes its importance in stimulating competition among wireline and wireless carriers. Third, the Comment explores the genesis and history of both wireline and wireless carriers in our society. Fourth, the Comment addresses the current competitive landscape that exists between service providers in the telecommunications industry. Finally, the Comment details the challenges and anticipated effects that WLNP will have on consumers and telecommunications carriers, as increased competition creates a more dynamic wireless industry.

THE APPLICATION OF TITLE III OF THE AMERICANS WITH DISABILITIES ACT OF 1990 TO THE INTERNET: PROPER E-PLANNING PREVENTS POOR E-PERFORMANCE
William Lynch
In this Comment, William Lynch argues that many visually impaired individuals who are potential Internet users are currently precluded from utilizing its wealth of information, products, and services because a number of websites are inaccessible due to electronic barriers which exist on the Internet. The author examines the application of Title III of the Americans with Disabilities Act to the Internet and finds that Title III, as applied to the Internet, does not violate the First Amendment to the Constitution. The Comment substantiates its position by examining the history of disability discrimination and the application of this problem to the Internet in light of statistical evidence. It analyzes interpretations of the applicability of Title III to the Internet by federal circuit courts and the Department of Justice. The Comment concludes that conflict exists among the federal appellate courts and that the Supreme Court needs to resolve this confusion and it provides a number of legal arguments for the application of Title III to the Internet.

NATIONAL SECURITY CHECKS ARE IN THE MAIL: A FIRST AMENDMENT ANALYSIS OF INTELLIGENT MAIL AND SENDER
Peter J. Dugan
In this Comment, Peter J. Dugan examines proposed reforms by the United States Postal Service Commission which would prohibit the sending of anonymous mail through the U.S. postal system. The Commission’s proposed reform would implement the use of intelligent mail to track the identity of mail senders by encrypting sender identifications onto the outside of each envelope. In response to these proposed changes to the postal system, the Comment argues that the Commission erred when it recommended the aggressive pursuit of intelligent mail and sender identifications for non-commercial applications. The author posits that proposed sender identification requirements will create a chilling effect on the First Amendment right to communicate anonymously and that, in response, the Supreme Court would most likely invalidate sender identification requirements for ordinary letter mail. The Comment first examines intelligent mail in greater detail and analyzes how the sender identification requirements, implicit within an intelligent mail system, will fit within the existing Postal Service regulatory framework. Second, it evaluates the current state of First Amendment law with regard to content neutral speech restrictions and finds that sender identification requirements will at first glance serve as constitutionally valid speech restrictions. Third, the author focuses on the relationship between First Amendment speech and the broad concept of anonymity to illustrate the societal importance of anonymous communication. Fourth, in reaching its conclusion that the Supreme Court would likely bar the use of intelligent tracking technologies with U.S. mail, the Comment explores the Supreme Court's analysis of anonymous communications in a variety of areas to illustrate that anonymous speech has been highly protected.