ACCESS DENIED: THE FCC'S FAILURE TO IMPLEMENT OPEN ACCESS TO CABLE AS REQUIRED BY THE COMMUNICATIONS ACT
Earl W. Comstock and John W. Butler
Comstock and Butler pose the question: What rules apply to the provision of internet access and other information services over cable facilities? These authors contend that the answer to this question lies in the Telecommunications Act, as amended in 1996, which requires the Federal Communications Commission (“FCC”) to apply to cable facilities that transmit internet access and other information services to the public, to be governed by the same open access rules that are mandatory for all telecommunications companies. Specifically, the authors argue that the FCC should require all telecommunications facility owners to share the underlying transmission “conduit” with unaffiliated ISPs and others. The authors argue that the FCC’s decision to ignore the explicit requirements of the Communications Act as they apply to cable facilities used to provide internet access cannot ultimately be upheld by the courts. To do so, would be to allow the creation of oligopolies of the high speed internet access marketplace by cable companies. This in turn will doom smaller ISPs whose presence the authors describe as “the driving force behind internet access competition and technological innovation.” The effect of this will be that powerful cable companies will avoid their obligations to make telecommunications transmission facilities available instead of fostering the competitive internet marketplace that the Commission meant to nurture.

WHOSE LINE IS IT ANYWAY? THE FIRST AMENDMENT AND CABLE OPEN ACCESS
Harold Feld
Harold Feld’s article discusses the telecommunications field when cable companies began upgrading their facilities to support high-speed Internet service. Seeing the promise of this new technology, federal and local officials began to pressure these companies to open their cable networks to non-affiliated internet service providers (“ISPs”) who also wished to provide broadband access independent of the cable companies that owned the network. Cable would not go quietly and leading the cable resistance was the AT&T Corporation who claimed that all cable companies have the right to offer internet services through an exclusive provider and that requiring a cable company to provide a choice of ISPs, offends the company’s First Amendment rights. Feld is attempting to answer the question: is the First Amendment a shield against any effort to open the cable network? The author discusses to answer this question through the guise of the 1998 AT&T/Tele-Communications, Inc. (“TCI”) merger. The author contends that rather than a shield against an open access requirement, the First Amendment should serve as a sword of compelling state interest, justifying an open access requirement and that AT&T’s attempt to argue ISP restrictions are analogous to the Supreme Court’s decision in Turner Broadcasting System, Inc. v. FCC are incorrect and unconvincing. Feld claims that a cable company’s status as an internet access or cable provider does not award it any special First Amendment protection and in this context, it should be treated as a common carrier service from a First Amendment point of view.

A STEP IN THE RIGHT DIRECTION: THE FCC PROVIDES REGULATORY RELIEF IN THE INTERNATIONAL SETTLEMENT AND INTERNATIONAL SERVICES LICENSING
Paul W. Kenefick
In 1999, the Federal Communications Commission (“FCC”) announced orders which affected international settlement policies and licensing policies of U.S. carriers engaged in international telecommunications services. The orders were the result of the FCC International Bureau's (“IB”) 1998 biennial regulatory review. In this review, the International Bureau held a public forum and many meetings with members of the telecommunications community, including the Federal Communications Bar Association. The purpose of the forums and meetings was to seek ideas to simplify, streamline and eliminate burdens on the international telecommunications industry. Fenefick’s article focuses on the impact of licensing and ISP reform orders on the international telecommunications community and details how these orders affected certain telecommunications issues. The author goes further in depth regarding international licensing and recommends certain actions and undertaking for the FCC’s next biennial regulatory review which will take place in the year 2000. The author first analyzes the FCC’s obligation to hold a biennial review. He then provides a brief history of how the FCC licenses U.S. telecommunications carriers that are engaged in the providing international telecommunications, and explores how the 1999 Licensing Reform Order impacts the World Trade Organization's Basic Telecommunications Agreement. The author places his last focus on how the 1998 biennial review impacted the aforementioned regulations and provides suggestions for the 2000 biennial review.

STATE SOVEREIGN IMMUNITY AND JUDICIAL REVIEW OF INTERCONNECTION AGREEMENTS UNDER THE TELECOMMUNICATIONS ACT OF 1996
Douglas C. Melcher
In formulating the 1996 Act's common carrier provisions, Congress imposed on Incumbent local exchange carriers (“ILEC”) a duty of mandatory interconnection obligations under section 251. This sections mandated that ILECs must physically connect their networks with any other telecommunications carrier who so requests, thus establishing an enforceable mechanism to ensure that ILECs could not exclude non-incumbent telecommunications carriers from local markets. Congress also implemented an enforcement mechanism in the Section 252. Where the parties to a proposed agreement cannot agree on the terms, a state commission would step in to resolve the dispute, but the decision could be appealed in federal district court. The exclusive federal judicial review of state commission decisions under sections 251 and 252 conflicts with the doctrine of state sovereign immunity, which bars a federal court from hearing suits against state governments. Melcher’s article discusses how sovereign immunity would allow a section 251/252 defendant to seek dismissal of the federal suit, and leave the plaintiff with no recourse in the state courts. The article discusses the many attempts by the Supreme Court and state Plaintiffs to circumvent the doctrine of sovereignty immunity, including the “abrogation doctrine” and “express” or “constructive” waiver. Melcher finally concludes that all of these choices are somewhat inadequate and proposes a new solution where the FCC assumes the responsibilities of the state commission to render a more fit decision regarding section 251/252 disputes.

MINIMIZING POTENTIAL LIABILITY ASSOCIATED WITH LINKING AND FRAMING ON THE WORLD WIDE WEB
Nicos L. Tsilas
Nicos Tsilas’s article recognizes that the internet has quickly become a medium of mass communication, but points out that the rapid development, dissemination and access and widespread acceptance of the internet may not have occurred without the techniques of “linking” and “framing.” Hypertext links are the highlighted text, pictures or logos on the linking website that, when selected, access the linked-to web page and transport the user to the new page that is accessible from the link they clicked on. Framing, on the other hand, allows a user to view the content of other linked sites without leaving the site originally visited by enabling the first website, the framing website, to bring up the content of another website, the framed website, within the borders of its own web page. Both linking and framing provide users flexible and quick access to other websites. Tsilas contends that more recently, linking and framing have been subject to intense legal scrutiny, as the law in this area struggles to keep pace with the rapidly evolving technology and practices of the internet. To date, there exists very little settled law in this area. Tsilas’s article explores the issue of trademark and copyright liability that website operators face when they link to and frame other websites. He proposes that unfair competition laws pose the greatest possibility of creating liability for the website operator. Finally, the article offers guidelines for website designers and owners to follow which can help to minimize their legal liability while still harnessing the full power of the internet's capabilities.

DE FACTO CENSORSHIP: ADULT CONTENT VIDEO SCRAMBLING AND THE FIRST AMENDMENT
Megan G. Rosenberger
Rosenberger’s article discusses the controversy surround Section 505 of the Telecommunications Act of 1996. Section 505 deals with a phenomenon on cable television known as signal bleed. This occurs when portions of the audio or video of a channel can be viewed although a subscriber has not requested that particular channel. This article focuses on signal bleed of adult channels which some subscribers inadvertently receive, despite cable company attempts to scramble the channel’s content. The author discusses the First Amendment implications of Section 505 in an attempt to discern if it runs contrary to the Constitution. Megan G. Rosenburger hypothesizes that though this section was originally intended to shield children from explicit and objectionable material, its drafting is flawed and it may do just that. This note explores the constitutionality of section 505's restrictions on adult programming and its effect on the cable services industry and does so with a focus on the 1999 Supreme Court case United States v. Playboy Entertainment Group, Inc.. The author discusses bedrock First Amendment cases to flush out the issues this case will involve and attempts to forecast how the Supreme Court will rule when they hand down their decision in mid 2000. Ultimately Megan Rosenberger agrees with Alexander Hamilton’s assessment, that when the Constitution and a piece of legislation are at odds, the Constitution must prevail and in this situation, the author believes that First Amendment must prevail over section 505.

SECTION 332 OF THE COMMUNCATIONS ACT: A FEDERALIST APPROACH TO REGULATING WIRELESS TELECOMMUNICATIONS SERVICES
Marianne Roach Casserly
When telecommunications was a budding field, Congress, recognizing that the introduction of telecommunications services could be delayed if the laws enacted in this new area required the approval of both the federal government and all fifty state governments. To head off this problem Congress enacted legislation that severely restricted state regulation of rates and entry for certain qualified mobile telephone services and thereby “federalized” much of the regulation of wireless telecommunications services. Clearly they had an eye toward creating a "federalist" telecommunications infrastructure that provided for the rapid national deployment of these new services. One way this was done was through the amendment of section 332 of the Telecommunications Act of 1934. This amended Section provides a revised regulatory scheme for mobile wireless services. This revised Section granted the FCC authority to preempt state regulation of entry into the wireless market and also the rates charged by wireless service providers. They left to the states only the ability to regulate the “other terms and conditions” of wireless service. Casserly’s comment analyzes the preemption provision of section 332 and its enactment. Further, it examines how the FCC has interpreted section 332 through its orders and other proceedings and explores the ways that telecommunications carriers have attempted to invoke section 332 to avoid state regulation. The author goes onto analyze relevant court decisions and ultimately concludes that the FCC has mostly interpreted section 332 in accordance with the language of the statute and congressional intent.

FEDERAL SUPPORT OF PUBLIC BROADCASTING: NOT QUITE WHAT LBJ HAD IN MIND
Chris Johnson
On November 7, 1967, President Lyndon B. Johnson signed the Public Broadcasting Act into law and established the Corporation for Public Broadcasting (“CPB”), a nonprofit corporation responsible for distributing the annual federal appropriation for public broadcasting. Most touted this new innovation in American television as “the voice of the American people” and hailed it as “an expression of diversity and excellence.” Recently, public broadcasting stations were found to have rented donor lists to the Clinton-Gore campaign and many have noticed that CPB has been succumbing to political party pressures and this has called into question whether public broadcasting is really independent and if it truly belongs to the American people. Chris Johnson’s comment proposes that public broadcasting is currently subject to government and party control while discussing the history behind the passage of the Public Broadcasting Act of 1967 and the creation of the Corporation for Public Broadcasting. Next, Johnson shows that federal support for public radio and television has not had the effect originally intended and demonstrates that federal support for public broadcasting produced undesirable side effects. The author contends that public broadcasting is currently a product of government control and is subject to numerous political interests. In light of all of this Chris Johnson concludes that continued federal support for public broadcasting is constitutionally unsound and proposes alternative methods for phasing out the annual federal appropriation as public broadcasting no longer conforms to constitutional standards of accountability.

INDEPENDENT EXPENDITURES ON THE INTERNET: FEDERAL ELECTION LAW AND POLITICAL SPEECH ON THE WORLD WIDE WEB
Ryan Z. Watts
The Internet is as beneficial as it is troublesome. It provides a single person the opportunity to reach millions, but the same medium provides opportunities for individuals to mistreat its general freedom of communication and widespread availability of information. Ryan Watts looks at these benefits and pitfalls of the Internet though a most familiar medium, Presidential elections and campaigns. Watts contends that enforcement on the net the Federal Election Campaign Act of 1971 (“the Act”) poses new problems for Congress and the courts alike and that both will be remiss to impose antiquated laws and policies on the world wide web. Watts picks up the story of a complaint the FCC received in mid-1999 from the George W. Bush for President Exploratory Committee, Inc., who was complaining about an Internet site that criticized Republican presidential candidate. The group alleged that the site violated a number of federal election regulations, namely those that require anyone who expressly advocates the election or defeat of a candidate on a personal Internet site must disclose expenditure information. Additionally, the group requested the FCC issue and advisory opinion on numerous other matters relating to the Act and the Internet. Watt’s comment discusses important Supreme Court decisions that have shaped FEC implementation of the Act and examines FEC policy concerning the Internet. The author concentrates on how the Commission calculates expenditures and discusses the matter pending before the FEC concerning Internet disclosure rules. Finally, this comment concludes that the FEC should carve a narrow exemption for the costs of creating an independent website for advocacy purposes.