Volume 49; 1996-1997 • Issue 1

Editor’s Note

Articles

The Telecommunications Act of 1996
by Thomas G. Krattenmaker

The author discusses the primary motivating factors behind the 1996 Telecommunications Act, examines how these factors influenced the final law, and critiques the Act by examining whether it is likely to advance public interest goals. Congress designed the Act to address two problems: “technological convergence” and “legal balkanization.” The Act attempts to remedy these problems by: (1) tearing down entry barriers so that legal balkanization no longer stands in the path of technological convergence; (2) changing the mandate of the FCC from deciding who should enter the market to monitoring the conditions under which entry takes place in order to control predators; and (3) protecting the most vulnerable from harmful competition. To the extent that the Act destroys entry barriers, it will be deemed a success while, to the extent that it creates or strengthens entry barriers, it will be deemed as failing.

The Legislative History of Senator Exon’s Communications Decency Act: Regulating Barbarians on the Information Superhighway
by Robert Cannon

Among the most visible and controversial provisions of the Telecommunications Act of 1996 have been those of an amendment to the larger act known as the Communications Decency Act. This article critically examines the legislative history of this amendment, creating a record of both official and unofficial sources. The article also notes the relevance of the legislative history as demonstrating both the unconstitutionality and the practical inefficacy of the statute.

Commentary: The Communications Decency Act
by Senator Jim Exon

Reconsidering Retransmission Consent: An Examination of the Retransmission Consent Provision (47 U.S.C. § 325(b)) of the 1992 Cable Act
by Charles Lubinsky

This article examines the legislative and economic history of the retransmission consent provision in the 1992 Cable Act. Retransmission consent provisions in the 1992 Cable Act allow broadcasters to enter into negotiations with cable operators regarding retransmission of their broadcast signal. The 1992 Cable Act requires broadcasters to choose between retransmission consent and must-carry provisions every three years. The first election period ended in October 1996 and a new election period begins January 1, 1997. Retransmission consent has had a noticeable effect on the evolution of cable television broadcasting, although it is arguably unclear whether retransmission consent has addressed the issues its proponents claimed it would address.

Hostile Tender Offers for Companies Holding Licensees Issued by the Federal Communications Commission
by Stephen F. Sewell

When a tender offer to acquire a company is made, those making the tender offer will have to overcome a number of regulatory hurdles. The number of hurdles multiply, however, when the offer is hostile and the target company holds licenses issued by the FCC. The article sketches the FCC’s response to hostile tender offers for companies holding FCC licenses, specifically discussing the Commission’s adoption of procedures in 1985 to address hostile tender offers. While these provisions provided needed clarification, the authority of the FCC to implement these provisions and the effectiveness of them as a matter of policy have remained in dispute. This article analyzes these issues, finding both a statutory basis for the agency policy and a practical requirement for it.

Speech

Creating Local Competition
by Joseph Farrell

The Telecommunications Act mandates the opening of local telephone markets to competition. The transition from a noncompetitive market to a competitive market promises to be a difficult journey with many pitfalls to be avoided. This speech expounds upon some of the economic principles that must guide the FCC in implementing the transition, particularly discussing the problem of achieving the goal of universal service in a competitive environment.

Essay

Pornography Drives Technology: Why Not to Censor the Internet
by Peter Johnson

Historically, the development of new media has been advanced by the creators of pornography. This was evident as communications media evolved from vernacular speech to movable type, to photography, to paperback books, to videotape, to cable and pay-TV, to 900 phone lines, to the French Minitel, and to the Internet. In short, pornography, far from being an evil that the First Amendment must endure, is a positive good that encourages experimentation with new technology. Accordingly, society should not view cyberpornographers as pariahs, rather they should be viewed as explorers who pave the roads for civilization to follow.

Note

A Return to Written Consent: A Proposal to the FCC to Eliminate Slamming
by Nicole C. Daniel

The FCC is charged with the task of encouraging competition in the telecommunications industry, yet it must also assure that competition remains free and fair to consumers. Various long-distance providers are taking advantage of their deregulated freedom by engaging in “slamming.” The author proposes a more effective form of consumer protection through the return of a short-lived FCC rule which required written customer authorization before the customer’s long-distance service could be switched.

Copyright:

Copyright © 1996 by the Federal Communications Law Journal. Except as otherwise provided, the author of each article in this issue has granted permission for copies of that article to be made for classroom use, provided that (1) copies are distributed at or below cost, (2) the author and the Journal are identified, (3) proper notice of copyright is attached to each copy, and (4) the Federal Communications Law Journal is notified of the use.