The Catholic University of America

PREFACE

 

Opportunities and Challenges in an Ever-Evolving Communications Landscape

 

The Honorable Henry A. Waxman

 

The articles published for this edition of CommLaw Conspectus: Journal of Communications Law and Policy are both timely and important–addressing topics such as spectrum allocation policies, the Comcast-NBC Universal transaction, privacy rights in a digital world, and cybersecurity. As communications technology rapidly progresses and consumers use information in new and exciting ways, we are presented with novel and pressing questions of law and policy. New broadband-based platforms hold significant promise for advancing the Nation’s economy, critical infrastructure, public safety, and homeland security, while improving our quality of life. Although these opportunities can present a number of challenges, and even risks, we have the ability to avoid or minimize adverse consequences with careful attention and action.

 

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ARTICLES

 

Seizing the Mobile Moment: Spectrum Allocation Policy for the Wireless Broadband Century

 

Charles M. Davidson & Michael J. Santorelli

 

Communications services have consistently played an important role in U.S. economic development. Characterized by economies of scale and exhibiting network effects, these services have welfare-enhancing benefits that spur innovation in other sectors by virtue of a spillover effect. While the full range of communications services has exhibited such impacts throughout the industry’s long history, broadband, the newest of the communications technologies, has quickly become the most robust platform to facilitate economic development, enable new business models and stimulate innovation across innumerable sectors.

 

The recent economic downturn highlights the critical role broadband will play in the recovery and future gains of the U.S. economy. In early 2009, at the trough of the recession, the U.S. Congress passed the American Recovery and Reinvestment Act (“ARRA”), enacted to “jump-start the economy to create and save jobs.7 A key part of this initiative is broadband as a means to stimulate economic activity and serve as the primary vehicle to realize the goals of ARRA. To this end, ARRA allocated over $7 billion for broadband deployment to unserved areas of the United States. ARRA also called upon the FCC to undertake an extensive review of the current broadband sector and issue a national plan to ensure the deployment and usage of broadband “technology . . . intersects with just about every great challenge facing our nation.” The FCC’s National Broadband Plan was issued in March 2010.

 

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The Broadband Credibility Gap

 

George S. Ford, Lawrence J. Spiwak, and Michael L. Stern

 

With the D.C. Circuit’s recent ruling in Comcast v. FCC, the court has thrown the Federal Communications Commission’s efforts to promote an “Open Internet” into legal limbo. At the time of this writing, Federal Communications Commission (“FCC”) Chairman Julius Genachowski responded by announcing that he would seek to impose a “Third Way” of regulation for broadband. Under the “Third Way” approach, the Commission would reclassify broadband transport as a “telecommunications service” under Title II of the Communications Act, coupled however with aggressive use of the FCC’s forbearance authority under Section 10 of the Communications Act to eliminate many of the more burdensome requirements of Title II regulation. In so doing, the Commission would ostensibly create some sort of “Title II Lite” regulation for broadband Internet services.

 

An outline for this new regulatory approach to broadband Internet service is provided in statements made by Chairman Genachowski and FCC General Counsel Austin Schlick (“Statements”). In the Statements, the question of the regulatory classification of broadband services is pitched as a Morton’s Fork. On the one hand, the FCC could retain the Title I classification, but doing so “has a serious risk of failure in court,” if the agency attempts to aggressively regulate broadband Internet services. On the other hand, the FCC could re-classify broadband as a Title II service, but this approach also “has serious drawbacks.” Reclassification, the Chairman argues, does “clarify the legal foundation for broadband policy,” but reclassification likewise “would also subject the providers of broadband communications services to extensive regulations ill-suited to broadband.” In an effort to resolve this dilemma, the Chairman proposes a “Third Way,” where reclassification occurs but the agency “[p]ut[s] in place up-front forbearance and meaningful boundaries to guard against regulatory overreach.” The result, allegedly, is a “lite” formulation of Title II regulation, which both Chairman Genachowski and Mr. Schlick suggest has been applied successfully to wireless communications for over a decade.

 

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When Cleansing Criminal History Clashes With the First Amendment and Online Journalism: Are Expungement Statutes Irrelevant in the Digital Age?

 

Clay Calvert & Jerry Bruno

 

Pensky & Kim, a Florida-based law firm, proudly boasts on its website that “expunging a criminal arrest record is an easy way to put your past where it belongs . . . in your past.” Similarly, in 2010, a company called American Par-don Services trumpeted that “people who have been expunged have paid their debt to society and can go on living their lives like their criminal past had never occurred.” But is that really the case in the era of the Internet?

 

This question is important because the Internet makes it easy to rapidly access vast amounts of information. That information sometimes includes unflattering or negative personal data—an arrest record or criminal charge, for example—that some people would just as well assume not be so readily available and instead be kept private. Unfortunately, as criminal defense lawyer Robert Perez summed up on NPR, “[t]here’s no such thing as privacy of criminal records anymore.”  Even if a record is expunged, Perez explained, prospective employers and landlords will find out about the criminal record if they use private database services that are unaffected by a court’s expungement order.

 

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COMMENTS

 

 

Achieving "The Franchise": The Comcast-NBC Universal Merger and the New Media Marketplace

 

Thomas Curtin

 

In 1997, then-Chairman of the Federal Communications Commission (“FCC” or “Commission”) Reed Hundt delivered a speech to the leaders of the cable industry in which he described the future of cable television in terms of what he called “the Franchise.” According to Hundt, this model “consists of the core package of the most popular TV channels and the most popular way to deliver them.” Hundt acknowledged that the cable industry “has made huge inroads on the delivery side,” and classified broadcast television as “the other side of the Franchise.” The Chairman further forecasted that “the core programming package may or may not be possessed by local broadcasters in the future.”

 

Nearly thirteen years after Chairman Hundt foretold an all-in-one entertainment content and delivery service, the Comcast Corporation (“Comcast”) is on its way to realizing this vision of “the Franchise,” as the media delivery giant undertakes efforts to merge with NBC Universal. If successful, the merger would give the nation’s largest cable corporation control over NBC Univer- sal’s immensely popular programming, along with its entire production, distribution, and entertainment interests. Since Chairman Hundt’s prediction, the video entertainment market has undergone widespread changes—from the increased popularity of satellites, to the advent of online television, which allows broadcasters to stream previously-aired television programs and encourages users to become the creators and publishers of video content, often for free and without advertising support. These developments are direct challenges to traditional multichannel video programming distributors (“MVPDs”), which must experiment with new business models in order to remain competitive.

 

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An Imbalanced Public Concern: The Case for Strict Scrutiny of Pure Freedom of Association Cases in Public Employment

 

Nicole M. Rementer

 

Joseph LaPosta joined the police force hoping to gain more experience within the Borough of Roseland Police Department, for which he had been working as a dispatcher. He completed the necessary training at the police academy and received his assignment as a police officer. Upon his assignment, Officer LaPosta wished to join a union and chose the Policeman’s Benevolent Association (“PBA”) local, instead of the popular Fraternal Order of Police (“F.O.P.”) local. The Chief of Police, however, warned Officer LaPosta that PBA membership was off-limits to any officers. Nevertheless, Officer LaPosta asserted his First Amendment freedom of association and joined the PBA, despite the Chief’s threat. In response, Officer LaPosta was:

[R]efused compensation for work assignments; denied the opportunity to attend training sessions that would have advanced his career; singled out for disciplinary action to which other officers (who were affiliated with the ‘correct’ union) were not subjected; and subjected to a hostile work environment that prevented him from performing basic work functions and advancing in rank.  

 

The government as a public employer needs “far broader powers” over its employees to conduct government affairs than those powers necessary to conduct similar affairs concerning private citizens. This need arises from the interests of the public employer in efficiency and productivity that are especially significant in the public workplace. Such interests in efficiency, though, must outweigh the First Amendment interests of the public employee when decisions adversely impact the First Amendment freedoms of the employee.

 

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The Battle Between Privacy and Policy in Quon v. City of Ontario: Employee Privacy Rights and the Operational Realities of the Workplace on Display at the Supreme Court

 

Carolyn G. Coda

 

We hold this truth to be self-evident: we live in a digital age. A person would be hard-pressed to walk down a crowded city block without seeing a single soul talking on a cell phone, listening to music on an iPod, or catching up on some reading on a Kindle. In the last fifteen years, the public has witnessed an explosion of communications and media devices into the market. These products mobilize users and free them of the tethers of desktop computers and landline telephones. The widespread use of such devices has signaled a dramatic shift in the day-to-day operations of the workplace, vastly increasing efficiency and allowing employers increased freedom.  However, such freedom inevitably comes with a price.

 

Employers in the United States currently spend 59 billion dollars on plans and devices that enable their employees to communicate with one another. Thus, employers have an interest in maintaining control over how each device is used, broadening the supervisory role of the employer to include the monitoring of employee communications on employer-issued devices. In today’s hyper-socialized society, it is inevitable that employees will step outside the lines of a device’s permitted purpose and use them for personal reasons. In light of these circumstances, questions arise as to whether or not an employer can lawfully monitor the actions of their employees on the issued device and, if so, what notice is required to adequately inform the employee. In June 2010, the Supreme Court of the United States promulgated a response to an integral piece of this very inquiry, albeit in a narrow context.

 

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Cyber-Espionage: A Growing Threat to the American Economy

 

Gerald O’Hara

 

The American economy is currently the world’s largest and most advanced. It is this status that allows the United States to remain among the most powerful and influential countries in the world. However, the country’s economy is at risk of marginalization in a way that many policymakers could not have envisioned just a decade ago. The potential result threatens not only the economic standing of the United States in the global economy, but its national security as well. Although threats of economic and industrial espionage have long existed, the international proliferation of the Internet makes cyber economic and industrial espionage an especially daunting and potentially economy-crippling threat. Policymakers in Washington have primarily focused their efforts on implementing a cybersecurity policy that will combat doomsday scenarios such as transportation and electricity-grid shut downs. However, a more specific form of cyber attack—cyber-espionage—has emerged as an equally potent threat. Therefore, Congress, the Administration, and the private sector must work quickly and collectively to form a more focused and specific response to protect American economic interests.

 

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CONSPECTUS

 

Selected Docket Summaries, 2010