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Volume 50; 1997-1998 • Issue 2

Editor’s Note


First Amendment Trump?: The Uncertain Constitutionalization of Structural Regulation Separating Telephone and Video
By Susan Dente Ross

The Cable Act of 1984 contained a “cross-ownership” ban, which prohibited telephone companies from entering the local cable video market. Although the ban was challenged by telephone carriers on numerous grounds, the First Amendment was not the basis of any challenge until the mid-1990s when telephone companies sought to characterize themselves not just as carriers but as content suppliers, or “speakers,” who were deprived of their right to speak as a result of common carrier regulations that were intended merely to control the economic structure of the communications industry. Using the First Amendment as a new-found constitutional weapon to challenge and eliminate regulations that constrain common carriers from expanding into other markets suggests that First Amendment arguments may be successful and efficient in eliminating economic-based, common carrier regulations. However, given the 1997 pronouncement by the Supreme Court in the second Turner case, in which a severely fractured Court failed to articulate any unifying constitutional jurisprudence upon which to determine whether certain common carrier regulations are content neutral, and therefore constitutional, the efficacy of First Amendment challenges may also be uncertain.

Creating Better Incentives Through Regulation: Section 271 of The Communications Act Of 1934 and The Promotion of Local Exchange Competition
By Tim Sloan

The overriding goal of the Telecommunications Act of 1996 is to promote competition in all telecommunications markets. Section 271 of the Act addresses competition in the local telecommunications market. This section provides that, with appropriate competition in the local exchange market, Bell Operating Companies shall be allowed to offer in-region, interLATA services. Although Bell Operating Companies have applied to offer such services, the FCC has yet to grant a section 271 application. Through these denials, the Commission has begun to construe the frequently ambiguous text included in Track A and Track B of section 271. A further understanding of the section’s Track A and Track B requirements is provided through a thorough examination of the text and legislative history. Obviously, section 271 is essential to Bell Operating Company entry into in-region, interLATA service. However, the Commission’s evaluation of applications should include a forward-looking assessment of a prospective entry’s effect on competition in a given local telecommunications market.


Balancing the Scales: the 1996 Telecommunications Act and Eleventh Amendment Immunity
By Cynthia L. Bauerly

The Telecommunications Act of 1996 explicitly created a role for federal courts in the interconnection process. However, parties’ ability to seek federal review of interconnection agreements is no longer as straightforward as the language of the Act implies. The Supreme Court’s unnecessarily novel and narrow reading of Eleventh Amendment immunity in Seminole Tribe v. Florida renders unenforceable the federal review provisions of the Act against state regulatory commissions. While some interconnection agreements may find their way into federal court, for example, where a party seeking to interconnect sues an incumbent provider instead of the state commission, enforcement of a federal order on a state commission will continue to pose costly problems. A more suitable approach, in line with previous immunity jurisprudence, would preserve federal court jurisdiction with appropriate deference to state action.

Networked Health Information: Assuring Quality Control on the Internet
By Kristin B. Keltner

The Clinton Administration’s Health Information and Applications Working Group promotes networked health information provided to all citizens through the Internet as one way to lower health care costs while improving the health of Americans. Managed care organizations and private health information providers already use the World Wide Web to disseminate consumer health information to broad segments of society. No standards exist to ensure that the information these Web sites carry is accurate and otherwise free from corruption. Disclaimers as to the reliability of the information as well as to the responsibility of the information provider for any harm caused by the information attempt to limit further consumer rights. Federal legislation modifying current common law could protect consumers from harms caused by insufficient accuracy and integrity. Such legislation need not sacrifice the Clinton Administration’s goal of developing and promoting networked health information. Section 253 of the Telecommunications Act of 1996: A Permanent

Physical Appropriation of Private Property That Must Be Justly Compensated
By Jennifer L. Worstell

Section 253 of the Telecommunications Act of 1996 was promulgated in an effort to remove unnecessary regulation by local governments and open up competition among local phone companies, cable providers, and other telecommunications concerns. However, this provision effectively prohibits local governments from managing their rights-of-way. Furthermore, it violates modern Fifth Amendment takings jurisprudence, Section 253 and the first three FCC and court decisions examining it not only have jeopardized effective municipal management and resource allocation discretion, but also have usurped local governments’ property rights without just compensation in explicit violation of the United States Constitution.


In Search of a Smoking Gun: Tortious Interference With Nondisclosure Agreements as an Obstacle to News Gathering
By Mark J. Chasteen

In November 1995, the prominent CBS newsmagazine 60 Minutes refrained from broadcasting an important interview with a former vice president of Brown & Williamson for fear of being liable for tortiously interfering with a confidentiality agreement between the employee and the tobacco company. This event illustrates a new concern facing media: specifically whether liability arises from broadcasting information that would be considered protected speech had the source not been a party to a nondisclosure agreement. It also illustrates an area of First Amendment jurisprudence that is as yet uncharted and for which there is no established standard that is easily applicable. To protect the First Amendment interests at stake—, freedom of the press— are implicated in tortious interference claims, the courts should establish a standard under which there is no liability for conduct that has the goal of gathering information about public entities on matters of public concern and does not have the purpose of harming or competing with the plaintiff. Such a standard would preserve the news gathering function of the press while respecting the right and need of corporate plaintiffs to prevent the disclosure of sensitive information to competitors.

Book Review

Defining Vision: The Battle for the Future of Television, By Joel Brinkley
By Herbert A. Terry