IS THE INTERNET A SAFE HAVEN FOR CORPORATE POLITICAL SPEECH? AUSTIN V. MICHIGAN CHAMBER OF COMMERCE IN THE SHADOW OF RENO V. ACLU
Karl J. Sandstron and Janis Crum
This article, co-authored by a Commissioner of the Federal Election Commission, explores the impact of the Reno v. ACLU Supreme Court decision on earlier Supreme Court holdings regarding corporate political speech, specifically with the advent of the Internet. The authors begin with a discussion of the Reno case that struck down the Communications Decency Act, which sought to regulate the transmission of obscene or indecent material on the Internet. Sandstrom and Crum then trace the effect of Reno on previous Court decisions on political speech focusing on how Austin v. Michigan Chamber of Commerce, which held that a state ban on corporations acting independently to advocate or defeat a political candidate without coordination with the candidate was not an unreasonable restriction on free speech, is not applicable to Internet communication. The article argues that the Internet has decreased distribution costs of political messages, thus undermining the Austin rationale that corporations could use their vast resources to influence voters via broadcasts or mailings. In continued analysis, the authors advocate that the fact that users must take affirmative steps to access material on the Internet, a point highlighted in Reno, undermines the Austin principle that saw corporations dominating the media and the message. Finally, the authors argue that the court recognized parity among Internet listeners and speakers in Reno and therefore the corporate speech ban upheld by Austin would be invalid when applied to Internet communications.

TRANSFORMING THE STRUCTURE OF NETWORK INTERCONNECTION AND TRANSPORT
Douglas A. Galbi
Arguing that regulator policy on telecommunications cannot simply be pro-competition because of the historical monopoly in the structure of the industry, this article advances the theory that the Federal Communications Commission (“FCC”) should adopt a mid-level theory of competition in regulating the telecommunications industry. Galbi forwards three propositions towards achieving this goal. The first proposition is that structural problems constrain beneficial developments for Internet services and voice telephony. The difficulties in finding solutions involving the transactional aspects of quality, reliability, and billing have created a stalemate in the marketplace because the government has not stepped in to force any kind of resolution. Galbi argues that only regulation and structural changes that do not solely leave decisions up to the market are necessary to break the impasse. The second proposition is that development of competing, independently-owned service interconnection points (“SIPs”) will stimulate the growth of local facilities and wide-area services. Advocating promoting telephony competition by regulations that do not pass judgment on competitive structure, Galbi asserts that current regulation may be unintentionally promoting an inferior competition model. Finally, Galbi proposes that voice service interconnection regulation should promote competing, independently-owned SIPs in order to maximize new wide-area network development. The author states that these propositions will allow for the best possible regulation of voice and emerging Internet services.

COMMISSION ON THE VERGE OF A JURISDICTIONAL BREAKDOWN: THE FCC AND ITS QUEST TO REGULATE ADVERTISING
Harold Furchtgott-Roth and Bryan Tramont
The Federal Communications Commission (“FCC” or “Commission”) should follow the law. This concept does not seem particularly novel or controversial but FCC Commissioner Harold Furchtgott-Roth and his legal advisor, Bryan Tramont, argue in this essay that too often the Commission exceeds the scope of its legal authority in an effort to “do good.” The authors use the FCC/Federal Trade Commission (“FTC”) advertising guidelines (“Guidelines”) for “Dial Around” long distance services as an example of the FCC exceeding the scope of its Congressional mandate and authority in an effort to achieve a popular end result. Neither the FCC nor the FTC have the Congressional authority to regulate common carrier advertising but the Commission presumes it does because it has the authority to ensure that “practices” of common carriers are “just and reasonable.” Yet, interpreting the term in this broad of a fashion is unprecedented and would lead to practically all common carrier activities coming under the purview of the Commission. The authors also argue that promulgation of the Guidelines removes the agency’s transparency to the public because such statements are not subject to the notice and comment provision of the Administrative Procedure Act and may evade judicial review because technically they are not binding on the agency. Additionally, the authors assert that FCC actions that go beyond their authority, no matter how well intentioned, undermine the premise of federalism; they advocate that state consumer protection laws and agencies are more effective at protecting their constituency. Finally, the FCC’s self-initiated actions deprive the Commission of the ability to perform its congressionally mandated tasks because of budgetary and personnel constraints. Thus the FCC must not let its desire to “do good” overwhelm its legal authority and overall mission.

THE ROLE OF GOVERNMENT IN TELECOMMUNICATIONS STANDARD SETTING
Kathleen M.H. Wallman
Industry standards are essential to the current and future development of the telecommunications industry because they ensure interoperability and allow a great number of consumers to benefit from network-effects. Yet the questions remains as to who should be setting these standards in a rapidly changing industry—government or the market? Wallman proposes that there is no simple answer to this question as both private and governmental standard setting can be very effective given the specific context. In this essay Wallman begins by examining whether governments still have a role in standards setting and she concludes that there are definitely situations that call for government standard setting. The author then notes the critical role that standards play in the advancement of technology and discusses the current practices in setting telecom standards, asserting that there are both positives and negatives from the current practices that can be applied towards future standard setting. Wallman then gives specific examples of where the government either decided to get involved with standard setting or decided not to and what the outcomes of these decisions were on the industry. The author concludes with taking past examples and using them to define characteristics of whether a particular situation is appropriate for government standard settings.

LEGG MASON—CAPITAL MARKETS: INVESTMENT PRECURSORS IN TELECOM, INTERNET AND ELECTRONIC COMMERCE
This piece, assembled from excerpts of the Legg Mason Seminar on Investment in Telecom, Internet and Electronic Commerce held in Washington, D.C. in March of 2000, provides a sampling of views on a wide variety of issues related to the business of communication. The article includes transcripts excerpted from selected seminars and features the views of many notable and influential individuals in the communications industry. The introduction, given by Scott Cleland, Managing Director, Legg Mason Precursor Group, emphasizes the growing importance in acknowledging and embracing globalization in telecommunications. The piece then features highlights from nine other seminars and addresses. The additional topics excerpted are: Cable Open Access, Convergence Policy, Where’s Telecom Heading?, The FCC Chairman’s Outlook, Wireless Data Outlook, Tech Outlook, International Telecom Outlook, Webcasting and a Global Outlook Keynote. In the Keynote speech Edward Whitacre, Chairman and CEO of SBC Communications, shares his views of the global outlook, stating that several things need to happen for globalization to continue: market liberalization and a development of global technology standards. Mr. Whitacre also outlines his trends for the future, which include U.S. telecom companies expanding overseas, consolidation among European telecom companies, increased foreign expansion in the U.S. and explosive growth in the wireless and data market.

HORIZONTAL AND CONGLOMERATE MERGER CONDITIONS: AN INTERIM REGULATORY APPROACH FOR A CONVERGED ENVIRONMENT
Lisa Blumensaadt
With the communication marketplace changing, via mergers and convergence amongst technologies and services, the traditional forms of communications industry regulation may no longer be applicable. In this comment, Blumensaadt examines these two main forces affecting regulatory change and explains how they will affect future regulation of the communications industry. The author begins by explaining what has created the wave of mergers sweeping through the industry, suggesting that the merger rush is a result of: the deregulatory environment since the 1996 Act, the benefits of economies of scale that result from consolidation, and the technological convergence that makes it difficult for a company to stay on the leading edge of the industry without reshuffling to take advantage of what these changes have to offer consumers. The article then describes the current state of Federal Communications Commission (“FCC”) regulation, which is predicated on the fact that particular services are tied to particular mediums—a presumption which is increasingly invalid. The difficulty in devising new, more appropriate regulation stems from the fact that the FCC is confined by Congress’ will as well as the inherent delays associated with the Administrative Procedure Act. Therefore, Blumensaadt argues, the best interim policy for regulating in a new industrial age of rapid change is by placing regulatory conditions on mergers. Placing these conditions allows the FCC to have a significant impact on the industry with more precise guidelines which can be enacted more efficiently. Using merger conditioning as a short-term regulatory tool will allow the FCC a viable alternative to industry-wide regulation in the continually changing communications landscape.

RACISM IS IN THE AIR: THE FCC’S MANDATE TO PROTECT MINORITIES FROM GETTING SHORTCHANGED BY ADVERTISERS
Robert Millar
Equal audience ratings do not translate to equal ad revenues for minority targeting broadcasters because some advertisers do not view that audience to be a lucrative demographic. Millar explains in this comment that despite industry initiated efforts to change this, government intervention is necessary to eliminate this kind of marketplace racism. Advertisers often, despite the actual demographics of their users, perceive their consumers to be more upscale, resulting in a “no Urban/Spanish” dictate when buying ad time. The author believes that the Federal Communications Commission (“FCC”) holds the power to correct this inherent racism in the system because of its congressional mandates. The FCC has been instructed by Congress to promote diverse views on the airwaves, and accordingly it has a statutory basis to shift the ad revenue landscape by promoting and maintaining diverse broadcast ownership and formats. Additionally, Millar argues that the FCC has the authority to correct anti-competition practices through the regulations of market barriers which can give anti-discriminatory policies the necessary teeth to be effective. Millar states that because of the special nature of broadcast, government intervention is preferential to normal market incentives for ensuring quality and diversity in broadcasts. The author explains that the FCC should regulate the industry by holding broadcasters responsible for their dealings with discriminatory ad buyers; government intervention is the most effective way to give minority-targeted broadcast stations equal footing and increase the overall diversity of the airways.

FIRE WITH FIRE: HOW THE FBI SET TECHNICAL STANDARDS FOR THE TELECOMMUNICATIONS INDUSTRY UNDER CALEA
Jared. J. Nylund
The Communications Assistance for Law Enforcement Act (“CALEA”) was intended to allow the government to better define the role and duties of telecommunications carriers in assisting law enforcement in administering authorized wiretaps. The Federal Communications Commission, in order to promulgate these standards, issued a Third Report and Order (“Third R&O”) adopting industry standards and features requested by the Federal Bureau of Investigation (“FBI”) that is under appeal. The comment first traces the history of wiretapping against the background of the Constitutional protections of the Fourth Amendment, evaluating both case law and statutory developments. The author then explores the specific statutory provisions that telecommunications carriers are obligated to provide under CALEA, giving the reader a better sense of the importance of the bill to the industry. Nylund then focuses specifically on the provisions laid out in the Third R&O to implement CALEA, discussing the controversial aspects such as location information, the failure to define a technical standard for separating the contents of packet-mode communications from call-identifying information, and the incorporation of items from the FBI’s list of requests. The author analyzes these provisions individually and argues that the Third R&O should stand because it effectively implements the will of Congress in this area, and suggests that telecommunications providers will need to take appropriate actions quickly in order to make themselves CALEA ready.