The Catholic University of America

Facing Tomorrow’s Challenges: Looking Forward, Looking Back
Bryan N. Tramont and Russell P. Hanser
During our time in the communications bar, the industry has witnessed myriad policy debates, as well as enormous technological change. Time and again, this journal and The Catholic University of America, Columbus School of Law have been at the forefront of the debate affecting these dramatic developments. We offer our very sincere congratulations to the editors and authors, past and present, who have worked to ensure that the CommLaw Conspectus remains an extremely valuable resource for practitioners and academics alike.
The articles appearing in this volume address many of today’s most pressing communications controversies, including how to move toward a true next-generation public-safety network, how to promote broadband deployment, the quandaries posed by the “net neutrality” debate, the best ways to ensure privacy and safety in the online world, and the proper means of ensuring true intermodal competition both at the facility layer and at the “applications” layer of the network. Each of these topics has given rise to robust discussion. Whatever one’s view of the authors’ specific arguments, there can be little doubt that the contributions presented here shed light on issues of critical importance.
 
A Tale of Two Commissions: Net Neutrality and Regulatory Analysis
Jerry Brito and Jerry Ellig
Two independent federal regulatory agencies, the Federal Communications Commission (“FCC”) and the Federal Trade Commission (“FTC”), both claim regulatory authority over broadband Internet access. Both have actively explored the costs and benefits of “net neutrality” regulation since 2005, when a series of FCC decisions declared that broadband is an information service rather than a telecommunications service. Since then, the FTC has held a public workshop and issued a 165-page Staff Report. The FCC has issued a Policy Statement, a Notice of Inquiry, and multiple regulations imposing net neutrality rules on 22 MHz of radio spectrum to be auctioned for commercial wireless services.
In general, “net neutrality” means that Internet service providers should treat all data packets identically.1 Traditionally, Internet service providers trans-ported data packets on a “best efforts” basis, with no particular packet receiving priority treatment. Today, Internet service providers can block, slow, or charge unequally for different content if they treat different packets differently. Such discrimination can help or harm consumers, depending on the circumstances. While antitrust and consumer protection laws already prohibit practices that would most clearly thwart competition or defraud consumers, advocates have nonetheless called for net neutrality regulation that would prohibit any special treatment of data packets.
 

Toward a Federal Data Agenda for Communications Policymaking
Philip M. Napoli and Joe Karaganis
Policy debates and decision making in the communications policy arena increasingly turn on quantitative data analyses. In this environment, issues of access to data and data quality are central to assessing the integrity of the policymaking process. The abilities of stakeholders to conduct research and integrate it into the policymaking process, and to assess and verify the research conducted and utilized by policymakers, have become increasingly important indicators of the transparency, objectivity, and participatory nature of the policymaking process. These issues of data quality and access encompass the protocols and conventions surrounding how (and by whom) data are gathered, the quantity and scope of available data, and the accessibility of data for policy analysis.
This article offers a critical assessment of the current state of the data environment in American communications policymaking. It draws upon a variety of current policy concerns, ranging from broadband deployment, to media ownership, to equal employment opportunities, in order to suggest that data access and data quality issues are serious and pervasive problems in communications policymaking. Underlying this analysis are fundamental ideas that have fallen into relative disuse in the communications policy arena: (1) that public policy should be made with publicly available data; and (2) that democracy is best served when the analyses that inform policymaking are transparent and widely accessible.
 
In Pursuit of a Next Generation Network for Public Safety Communications
Philip J. Weiser and Dale N. Hatfield
On April 11-12, 2007, in Washington, D.C., the University of Colorado Law School’s Silicon Flatirons Program convened a roundtable on public safety communications (“Roundtable”) to tackle the increasingly high-profile and often acrimonious issues surrounding the status of public safety communications in the United States. This Roundtable successfully brought together participants with affiliations spanning a variety of disparate stakeholders and highlighted a series of important issues for policymakers.
Overall, the Roundtable discussion emphasized that technological changes and policy reforms can spur the development of a next generation network (“NGN”) for public safety communications. Significantly, such a network would facilitate both greater levels of operability and interoperability between networks. Operability refers to the ability of communications systems to function effectively, reliably, and continuously. Interoperability refers to the ability of different first responders to communicate with one another in real-time, whether or not they are using different communications systems. Stated broadly, interoperability signifies “the ability of emergency response providers and relevant Federal, State, and local government agencies to communicate with each other as necessary . . . utilizing information technology systems and radio communications systems, and to exchange voice, data, or video with one another . . . in real time, as necessary.”
 
Framing a National Broadband Policy
Robert D. Atkinson
It is difficult to pick up a business or technology magazine without reading that the United States is falling behind other nations in broadband telecommunications. The real question is not whether the United States is falling behind—it is, as will be demonstrated—but whether the country should have a national broadband policy in response and, if so, what it should look like.
The answer to this question is not obvious. After all, a host of other exciting digital technologies have recently been introduced, and there is no talk of an Xbox gap or a national MP3 player strategy. On the other hand, broadband is unique in that the social returns of broadband investment exceed the private returns to companies and consumers. Therefore, market forces alone will not generate the societally optimal level of broadband in the foreseeable future.
Part II of this article assesses how far and why the United States has fallen behind in broadband. Part III then discusses why leaving broadband to the market alone will likely lead to adoption of broadband at a less than societally optimal rate. These reasons, laid out in Part IV, are: (1) network externalities; (2) “prosumer” investment externalities; (3) competitiveness externalities; and (4) regional externalities. Part V considers the trade-offs between various broadband goals, including universal deployment to all places, universal take-up by all individuals, faster broadband speeds, and increased competition. Finally, Part VI concludes that the reasons discussed necessitate a national broadband policy, and suggests that crafting such a policy must involve significant analysis, debate, and consideration.
 
Broadband Over Power Lines Crisscrossing the Nation: Rethinking Cross-Subsidization
Lindsay R. Capodilupo
On a damp suburban afternoon, neighborhood noises can be heard: children laughing, dogs barking, and cars passing. Buried in the soundtrack, an almost imperceptible buzz from the power lines originates from towering wood poles. In this neighborhood, one homeowner’s hope for a new residence away from power lines looming in the backyard where his or her children play may be another’s hope for connecting with the digital world.
In today’s digitally driven society, broadband matters and “has the potential to transform the Internet—both what it offers and how it is used.” Defined as “any circuit significantly faster than a dial-up phone line,” broadband is the mustang of Internet access technology. Given its faster speed and voluminous data transmission capabilities, broadband allows the Internet to be used in new, life-altering ways. For example, broadband provides consumers access to distance learning and telemedicine services, as well as the potential to enhance home security networks and utilize home automation by its “always-on” status. From an economic perspective, “broadband technology is a key driver of economic growth” as it “increases productivity, facilitates commerce, and drives innovation.” Finally, increased access to broadband allows citizens in rural areas with limited or no Internet access to connect to the digital community.
 
A Child’s Playground Or a Predator’s Hunting Ground? – How to Protect Children on Internet Social Networking Sites
Jessica S. Groppe
Playing on swing sets has become an archaic childhood past time, replaced by the virtual world of chat rooms, blogs, and instant messenger. Children today are growing up “watching, listening to and interacting with technology and media for any purpose, including TV, radio, iPods, video games, computers and the Internet.” This new generation of Internet-savvy children is prevalent in cyberspace where entertainment, friendships, and refuge become accessible at the click of a finger. Unfortunately, despite the educational, recreational, interpersonal, and even therapeutic value the Internet offers the global community, cyberspace has cultivated a dangerous environment for this nation’s youth. Online sexual solicitations and online exposure to obscene or otherwise unwanted sexual material are the two biggest challenges society must overcome in order “to protect our children from these cowardly villains who hide in the shadows of the Internet.”
Online predators are becoming increasingly successful in soliciting youth. Predators come in all shapes and sizes, with no easy stereotype for law enforcement to target. The online predator community runs the gamut, including male and female teenagers, young adults, and adults. The Internet provides predators with anonymity and nearly unlimited access to information, particularly on social networking sites such as MySpace or Facebook, creating a pressing societal concern.
 
Competition Versus Local Control: FCC Streamlines Franchising Process to Increase Competition in the Cable Market
Matthew Phelps
AT&T and Verizon are coming to a television near you. They and other telephone companies are beginning to penetrate the cable market. This development should result in more choice for consumers and lower cable rates. Many telephone companies, however, are frustrated with the time it takes to negotiate a cable franchise in most localities. Some argue that this lengthy process prevents competition in the cable market,while others argue that the telephone companies are just trying to keep up with cable companies that now offer telephone services.Either way, the Federal Communications Commission (“FCC” or “Commission”) has recently put restrictions on local franchising authorities in an effort to spur competition across the country.These new rules expedite the franchise negotiation process, but limit the authority of local franchising agencies. Some ask whether the FCC went too far in adopting these rules and whether the gains from competition are worth the loss in local autonomy.This Comment will argue that the FCC has the authority to regulate the franchise process and that these rules reflect sound economic policy.
 
Can you Find Me Now? – Tracking the Limits on Government Access to Cellular GPS Location Data
Derek P. Richmond
As cellular telephones have dramatically decreased in size, manufacturers have continued to infuse more and more technology into these devices, some of which are smaller than a deck of cards. In addition to standard voice ser-vices, offerings such as text and picture messaging, email, and Web access, photo, and even video cameras are now commonplace. Along with these functions, approximately one hundred million mobile phones in the U.S. contain Global Positioning System (“GPS”) chips, and such phones will continue to proliferate in the future. Partially due to consumer demand for improved tech-nology, and partly a response to a government mandate, this common arrangement allows service providers to offer a host of new options and services. GPS technology, when installed on a cellular phone, allows precise locating and tracking of anyone using such a GPS-enabled phone. Many cell phone manufacturers install these chips regardless of whether the user or ser-vice provider explicitly uses it, and many consumers are wholly unaware of the potential, both good and bad, of this combined technology.