Volume 49; 1996-1997 • Issue 3

Editor’s Note

Articles

Digital Television and the Allure of Auctions: The Birth and Stillbirth of DTV Legislation
By Ellen P. Goodman

Although relatively few provisions of the 1996 Telecommunication Act relate to digital broadcast television, these provisions have contributed to the ongoing debate over assignment of spectrum for DTV uses. Attention to the disputed issues of DTV has accentuated the differences between methods of spectrum management: how spectrum should be assigned among various services and users, and what roles the FCC and Congress should play. Two camps have emerged from the controversy: one viewing spectrum as a commodity that should be assigned by auction, the other viewing spectrum as a resource that must be allocated according to strict technical criteria and assigned sometimes by auction, sometimes not. In an order released as this article was going to press, the FCC adopted rules for the allocation spectrum for DTV. Although the DTV issues have been resolved (for the time-being, at least), examination of the process by which the Congress and the FCC allocated this spectrum will be helpful for future allocation of spectrum, for this or other uses.

The 1996 Telekommunikationsgesetz and the Telecommunications Act of 1996: Toward More Competitive Markets in Telecommunications in Germany and the United States
By Carl B. Kress

Following a worldwide trend of increased market competition in telecommunications, both the United States and Germany passed new legislation in 1996 aimed at liberalizing communications regulation. Germany passed the Telekommunikationsgestz (TKG), and the United States passed the Telecommunications Act of 1996. The TKG was enacted in response to European Community requirements that Germany open its telecommunications market. While the TKG covers a broad spectrum of issues, five areas stand out as the law’s primary focus: licensing, universal service, market-dominant position regulation, interconnection, and rights-of-way. A comparison between the U.S and German laws in these five areas demonstrates the strength and weaknesses of each system. Although the development of the telecommunications industry differed in the two countries, a comparison of the new laws reveals that both countries are moving in a similar direction of increased liberalization.

An Opportunity Lost: The United Kingdom’s Failed Reform of Defamation Law
By Douglas W. Vick & Linda Macpherson

The Defamation Act 1996 is the first major piece of libel legislation in Britain since the Defamation Act 1952. The British Parliament passed the Act in response to the ease with which libel plaintiffs can establish liability and in response to huge damage awards. In passing the Act, Parliament attempted to shift the balance of defamation law away from protecting the reputational interest of plaintiffs and toward protecting free discussion and open criticism. However, the Act merely fine-tunes current law. The Act reduces the limitations period for defamation suits, introduces procedural reforms to simplify and reduce libel suits and permits Members of Parliament to waive their Parliamentary privilege if necessary to bring their own defamation claims. Yet the Act fails to adequately reform English law to provide greater freedom of speech protection. For example, unlike other jurisdictions, English law does not recognize some form of “public figure” defense. By failing to substantively reduce the ease of defamation suits, Parliament lost the opportunity to provide greater protection of speech.

Essay

Telecommunications Access in the Age of Electronic Commerce: Toward a Third-Generation Universal Service Policy
By Milton Mueller

Like many other countries, the United States is in the midst of redefining its universal service policy. Access to telecommunications no longer depends on connecting a copper wire line into the home. Rather, universal service depends on how people will access and use the infrastructure around them. The ability to access communications facilities requires an account relationship between the supplier and the user. Therefore, the account relationship, not the presence of a physical connection to the home, should be the focal point of a universal service policy. With the rise of electronic commerce, access hinges on account verification, credit authorizations, billings, and collection. Metaphorically, the symbol for the third generation of universal service is not the wire, but the card, be it the credit card, the debit card, or the SIM card.

Notes

Media Mergers: First Step in a New Shift of Antitrust Analysis?
By Keith Conrad

An alarming trend toward concentration of media ownership has been highlighted by Walt Disney’s acquisition of Capital Cities/ABC, and Time Warner’s acquisition of Turner Broadcasting System. While current antitrust approaches are not expected to stem this trend, antitrust is a constantly evolving area of law. As Chairman of the FTC, Robert Pitofsky is in a position to move antitrust analysis away from the economically focused Chicago School approach, and toward an approach which also considers social and political issues. Consideration of these issues is supported by Pitofsky’s own writings and could reduce the trend of media concentration.

Regulating Electronic Money in Small-Value Payment Systems: Telecommunications Law as a Regulatory Model
By Randall W. Sifers

A smart card, or stored value card, is a credit card-sized payment mechanism with an embedded integrated circuit chip. Current technology allows value to be placed on the card through an ATM terminal, a telephone equipped with a card reader, or a personal computer equipped with a card reader. The suitability of the card for small-value, high-volume transactions indicates that stored value cards could, to a large extent, replace currency transactions. Existing laws are not tailored to deal with the nature of transactions involving stored value cards, nor do they address nonbank card issuers. The integration of telecommunications and financial services strains traditional regulatory practices in both areas. Regulation of electronic money should be structured to eliminate barriers to competition and allow for innovation while creating a level playing field for both financial and nonfinancial issuers.

Comment

Linking Copyright to Homepages
By Matt Jackson

The explosive growth of the Internet as a widespread medium of communication raises many novel copyright issues. One issue that has escaped much examination is the copyright implications of “links”–references to other Internet Web sites that allow immediate access to those sites. This Comment analyzes such questions as whether linking gives rise to direct or contributory liability to the copyright owner of a linked site, and whether the links themselves are copyrightable. It concludes that, although contributory liability is possible, linking cannot constitute a direct infringement any more than dialing a phone number to reach an answering machine with a copyrightable message. Additionally, the owner of a Web site with links to other sites possesses protectible interests analogous to the publisher of a telephone book.

Book Review

Combatting SLAPPs: Absolutism Is Not the Answer
By Daniel O. Conkle

Bibliography

A Selected Bibliography of the Telecommunications Act of 1996