PREFACE
Veryl V. Miles

WHAT DID THE UNBUNDLED NETWORK ELEMENT PLATFORM COST?
Jerry Ellig and Nicholas Taylor
Dr. Ellig and Mr. Taylor address the economic effects of federal regulation of unbundled network element platforms (“UNE-Ps”). The article examines whether the federal mandate to unbundle incumbent telephone network elements for resale to Competitive Local Exchange Carriers (“CLECs”) is the most efficient economic policy to ensure that the wealth transfer passed from ILECs to CLECs in the form of savings from the resale of network elements is passed onto consumers in the form of reduced rates. Dr. Ellig and Mr. Taylor also evaluate an alternative economic policy, promoting the reduction of long-distance access charges and federal Universal Service Fund contributions, and assess whether the policy may benefit consumers. Dr. Ellig and Mr. Taylor conducted a review of other economic studies and conclude that many economists have too quickly reached the conclusion that the UNE-P policy resulted in positive benefits for consumers. Dr. Ellig and Mr. Taylor then analyzed the economic benefits and detriments of the UNE-P policy, and the hypothetical policy that would reduce long-distance access charges and Universal Service Fund contributions, and concluded that regulation of the UNE-Ps did not stimulate economically efficient competition enough to result in savings for consumers. The authors conclude that consumers would have received larger benefits if federal regulators had focused on reducing the “market distorting” effects caused by long-distance access charges and Universal Service Fund contributions.

TOWARD A FAIR NETWORK ACCESS RATE POLICY FOR RURAL BROADBAND SERVICE PROVIDERS
Craig A. Anderson
The rise of competitive rural broadband service providers (“BSPs”) began with the enactment of the Telecommunications Act of 1996. As early as 1997, BSPs began operating in small rural community markets by building their own proprietary networks complete with direct customer premise connections to compete with the much larger incumbents who had allowed their service plant to deteriorate. The Federal Communications Commission (the “Commission”) has long recognized that a major key to establishing competition in telecommunications is mandatory interconnection of competing networks. Mandatory interconnection removes substantial barriers to entry into telecommunications markets; however, it also introduces the problem of the requirement of just compensation under the Fifth Amendment’s Takings Clause to individual network owners, like BSPs. In 2001, the Commission imposed network rate caps based on incumbent access rates assuming that these rates were representative of market prices. Anderson argues that this is simply not true. He suggests that as a result, rural BSPs are forced to cap their access rates at levels far below their actual costs. He notes that current FCC policies place BSPs at a significant disadvantage and ultimately interfere with capital investment and competition among other things in rural markets. Although the Commission attempted to ameliorate these problems through the “Rural Exemption,” Anderson suggests that it is so narrowly drawn that it is ineffective. Anderson concludes by proffering a solution for establishing network access rates for rural BSPs.

MUTUALLY EXCLUSIVE NONCOMMERCIAL EDUCATIONAL FM APPLICATIONS: ACCEPTED FOR FILING, TENTATIVELY SELECTED, AND . . . GRANTED?
Carly T. Didden
This article analyzes the newest methodology used to assess mutually exclusive, noncommercial educational FM radio station applications in the FCC’s competitive bidding system. Didden maintains that the point system recently adopted by the FCC is a significant improvement from the previous methods, and has the potential of being a catalyst of service to the public interest. Didden first examines and distinguishes the various application methods in her determination of the best approach for evaluating mutually exclusive applications. Despite the point system’s great potential, Didden ultimately argues that problems are inevitable in the implementation process, and greater oversight is needed to clarify definitions, assign point determinations, and establish a series of checks and balances once tentative selections are made. The FCC can only improve this process with the help of regulatory and legislative actions that will fully facilitate the implementation of mutually exclusive noncommercial education FM applications.

DON’T QUOTE ME: THE LAW OF JUDICIAL COMMUNICATIONS IN FEDERAL APPELLATE PRACTICE AND THE CONSTITUTIONALITY OF PROPOSED RULE 32.1
Diane Adams-Strickland
In response to the crippling surge in the appellate caseload during the 1960s, the federal courts of appeals implemented an informal non-publication policy regarding judicial opinions. Under this regime, judicial opinions designated as “unpublished” were excluded from the bounds of the Federal Reporter and, thus, were inaccessible to the general public. In order to safeguard the efficiency associated with non-publication, and maintain fairness among all litigants, counselors were persuaded not to use unpublished opinions through the promulgation of “no-citation” rules. These rules prohibit or restrict a litigant from citing to an unpublished opinion in an appellate brief or oral argument. No-citation rules have been criticized for violating First Amendment protections and creating a “secret law.” With the resulting accessibility of unpublished opinions, such arguments have been rendered moot and the Judicial Conference has proposed a rule to the Federal Appellate Rules of Procedure—Rule 32.1. If passed, Rule 32.1 will prohibit any restriction placed on the citation of judicial opinions. Ms. Adams-Strickland’s article summarizes the legal history leading up to the use of unpublished opinions as well as the advances in technology that ultimately required the implementation of no-citation rules. She also gives a brief overview of the proposed rule and the rationale behind its creation—the need to balance judicial efficiency against the rights of the parties. It also examines the inconsistency that currently exists between the circuits regarding the precedential or persuasive use for unpublished opinions. Ms. Adams-Strickland ultimately advocates for a unified publication plan rather than a uniform citation plan if the desired goal for a predictable and consistent body of circuit case authority is to be realized.

STATUTORY INTERPRETATION ISN’T THAT TAXING: A LOOK AT THE CURRENT APPLICATION OF THE FEDERAL EXCISE TAX ON COMMUNICATIONS
Kendra Kosko
Intermittently for 107 years, Americans have been subject to an excise tax on telephone service. During this century, telephones have evolved from a rare luxury to an everyday necessity. This telephone excise tax too has evolved with telephone service. Congress established the current statutory framework for taxing communications services in 1965. The statute was designed to mimic the long-distance billing practices of the predominant telephone service provider at the time, AT&T, which billed for long-distance service based on both the distance and duration of the call. Today's billing practices have largely eliminated the distance component. Many companies have sought refunds for the overpayment of these excise taxes claiming that the long distance services for which they were taxed do not fit the statutory definition of long distance and therefore are not taxable. Several district courts have heard the issue and all but one have favored the taxpayer. Kosko asserts that the sole court holding in favor of the government, which has now been overturned, is the only court to correctly decide the issue.

IP VIDEO: PUTTING CONTROL IN THE HANDS OF CONSUMERS
Ron Whitworth
One of the hottest debates in the communications industry is whether cable and satellite companies should be forced to offer channels on an a la carte basis. Chairman Kevin Martin is a proponent of the plan, and after the proposal seemed to be dead, it has returned and become a major issue once again. This article discusses a new technology that could answer the debate over a la carte cable, and the ongoing controversy surrounding indecency regulation. In this article, Ron Whitworth examines how IP Video can revolutionize how content is delivered to the home, and why it will turn the battle between phone and cable companies on its head. As the Federal Communications Commission and Congress begins to revisit whether to mandate a la carte, IP Video is being rolled out into test markets. Whitworth argues that as IP Video grows into a serious competitor to cable and satellite television, it might provide the answer the FCC has been seeking regarding a la carte and indecency.

WHY THE TRADITIONAL FIRST AMENDMENT RIGHT TO A PUBLIC TRIAL CANNOT BE APPLIED TO MILITARY TRIBUNALS
Jessica Zarrella
After September 11, 2001 President George W. Bush decided that members of Al Qaida would be tried not in Article III courts, but before military tribunals. Since then many questions have surround the promulgation of military tribunals and the rules that govern them. What First Amendment right to a public trial do these tribunals afford to enemy combatants? What rights should they afford? This article attempts to answer some of the questions surrounding this "cameras in the courtroom debate," explains the traditional right to a public trial under the First Amendment and argues that a more restrictive standard should be applied to non citizen enemy combatants and military tribunals. Zarrella argues that the inability of federal judges to handle cases of sensitive national security information, civilian and military case law and the Geneva Convention all militate in favor of restriction. The author also contends that "garden variety" criminal defendants and non-citizen enemy combatants are situated in such a dissimilar manner as to justify disparate standards of treatment and that the heightened risk to national security that non-citizen combatants pose allows the restriction of the right of the media and the press to access these tribunals.

MAJOR COURT DECISIONS IN COMMUNICATIONS LAW, 2005

MAJOR FCC DOCKET SUMMARIES, 2005