Volume 50; 1997-1998 • Issue 3

Editor’s Note

Commemoration

The Federal Communications Law Journal at Sixty
By Adrian Cronauer

Essay

Communications Policy Leadership for the Next Century
By Commissioner Michael K. Powell

Those of us involved in the communications field realize the dramatic changes and challenges posed by the passage of the Telecommunications Act of 1996. In particular, those in charge of implementing the Act’s provisions face serious challenges. There are three ways that those in leadership positions may prevail in this “communications revolution” so as to facilitate development. First, it is essential to be familiar with the fields of economics and competitive analysis, and to understand that competition and markets will prove superior devices for managing change. Second, the importance of technology must be emphasized. Finally, emotion or special interest politics must not drive leaders in this communications revolution— they should be driven by facts and ideas. Those in leadership positions must recognize these ideas if technology and competition are to develop efficiently.

Articles

Section 332 of the Communications Act of 1934: A Federal Regulatory Framework That Is “Hog Tight, Horse High, and Bull Strong”
By Leonard J. Kennedy & Heather A. Purcell

In 1993, recognizing that state and local regulatory practices were harmful to the development of widespread low-cost commercial and personal mobile radio services, the U.S. Congress passed, and President Clinton signed, legislation that freed wireless carriers from a dual federal-state regulatory structure. As a result, sections 332 and 2(b) of the Communications Act were revised to endow the FCC with exclusive jurisdiction over wireless regulation. Unfortunately, some courts and regulators have concluded that Congress did not intend to grant the FCC exclusive authority over wireless communications. Such rulings could be attributed to a misguided focus on traditional preemption analysis rather than the actual jurisdictional boundaries drawn by congressional legislation. Eventually these developments may shackle new wireless services to old regulatory structures, a result that would thwart congressional goals and hinder the growth of this emerging industry. If the wireless industry’s promise is to be fully realized, relying upon market forces to address consumer needs, as Congress intended, is an experiment well worth seeing through to its conclusion.

The “Public Interest” Standard: The Search for the Holy Grail
By Erwin G. Krasnow & Jack N. Goodman

During the last eighty years, there is likely no single area of communications policy that has generated as much scholarly discourse, judicial analysis, and political debate as has the simple directive to regulate in the “public interest.” While remaining at the heart of current communications regulatory policy debate, the public interest standard has been subject to evolving, and often elusive definitions that reflect the change in American culture from generation to generation. As broadcasters begin the transition to a more flexible digital technology, there have been calls for a reexamination of the public interest standard. But the genius of the public interest standard is its breadth and flexibility, and the advent of digital television should not be an occasion for increasing public interest requirements. If anything, the development of new technologies justifies greater reliance on broadcasters and the market to ensure service to the public.

A Modest Proposal for Restructuring the Federal Communications Commission
By Harry M. Shooshan III

At a time when the FCC is in the process of implementing the massive 1996 Telecommunications Act, a number of commentators have been calling for drastic change in the agency’s structure. There most certainly are legitimate questions about how the modern FCC should be organized. A single-administrator model, which has been successful in the United Kingdom, could provide a more stable and predictable regulatory environment than currently exists. The advantages of a single administrator over a multimember commission are substantial and provide a conservative alternative to calls for the elimination of the agency. Such change would enable the FCC to operate in a more efficient and effective manner.

Notes

The FCC and Aids Education: Helping Broadcasters Serve the Public Interest
By Jason B. Acton

Despite recent advances in medical technology, AIDS remains a very serious international health threat. Even with the presence of new drug therapies that have helped to prolong the lives of those who suffer from the disease, scientists have been unable to develop a cure. Consequently education remains the primary weapon available in the war against AIDS. Unfortunately, AIDS education initiatives have found little support in the broadcast community. To renew their licenses, broadcasters are required to act in the public interest— requirement that has traditionally required very little. However, given the threat AIDS presents to society, the FCC should require broadcasters to provide meaningful AIDS-education programming to satisfy their public interest obligation. This type of requirement, if similar in form and style to the Children’s Television Act of 1990, would likely pass constitutional muster. Additionally, such a requirement would prove to be a powerful weapon in the battle to stop the spread of AIDS.

Electronic Communications and the Law: Help or Hindrance to Telecommuting?
By Jennifer C. Dombrow

During 1997, an estimated 11.1 million workers preformed some portion of their work by telecommuting. This number is expected to grow as employers continue to discover the benefits that can result from instituting a telecommuting policy. This growth may be hindered, however, by controversy concerning employee privacy rights. Although the use of electronic communications in the workplace is common, the laws addressing employee privacy rights and employer monitoring rights concerning these communications are ambiguous. New legislation is necessary to specifically define the respective rights of employers and employees. Without this new legislation, the benefits of electronic communications in the workplace, such as telecommuting, will remain significantly underutilized.

Moving Toward Neutrality: The National Telecommunications and Information Administration’s New Stance on Sectarian Programming
By Nancy L. Reynolds

The National Telecommunications and Information Administration (NTIA) has recently reinterpreted its funding policy regarding religious programming to create a policy more consistent with the religion clauses of the First Amendment and more responsive to the goal of government neutrality toward religion. Until 1996, the NTIA categorically denied all funding to government programming that provided any incidental or attenuated benefit to religion. However, in light of recent Establishment Clause cases, the NTIA modified its interpretation of sectarian programming, allowing a radio station to receive government funding even if its programming provides an attenuated or incidental benefit to religion. The NTIA’s new interpretation of its policy on sectarian programming has important implications for telecommunications and constitutional law and may signal a less restrictive and more substantively neutral stance toward religion in the area of public broadcasting.

Allowing FDA Regulation of Communications Software Used in Telemedicine: A Potentially Fatal Misdiagnosis?
By Ann K. Schooley

Communications technology is changing and improving the way that health care services are delivered to patients. Telemedicine, or the use of communications technology to provide medical care, allows doctors to treat patients in rural areas who otherwise would not have access to medical services. With the development and use of telemedicine, however, comes the burden of government regulation. The Food and Drug Administration (FDA) is just beginning to assert its jurisdiction over telemedicine, seeking to regulate telemedicine systems as medical devices under 21 U.S.C. § 321(h). Should the FDA strongly assert its jurisdiction, it has the ability to regulate entire telemedicine systems, including all of the communications technology used in such systems. Potential regulation by the FDA poses serious problems for the telecommunications industry, and may have a deleterious effect in the research and use of telemedicine. The jurisdiction of the FDA to regulate communications technology used in telemedicine should be limited in order to encourage the widespread development of telemedicine.

Comment

Sobriety Test: The Court Walks the Central HudsonLine Once Again in 44 Liquormart, but Passes on a New First Amendment Review
By Aaron A. Schmoll

In 1980 the Supreme Court decided Central Hudson and, in so doing, articulated the parameters of the modern commercial speech doctrine. In providing a four-part test to determine the validity of government efforts to restrict commercial speech, the Court engaged in “intermediate scrutiny” and created the expectation among free speech advocates that the Court was finally ready to provide higher measure of constitutional protection to commercial speech. In the nearly fifteen years after Central Hudson, these advocates have been disappointed as the Court has inconsistently weighed the factors that comprise the test. The opportunity to adopt a less- manipulative test, which would involve strict scrutiny analysis for reviewing advertising and other types of commercial speech was not seized by the Court when it considered 44 Liquormart, Inc. v. Rhode Island in 1994 and, thus, murkiness within commercial speech protection remains.

Book Review

Law and Disorder in Cyberspace: Abolish The FCC and Let Common Law Rule the Telecosm, by Peter Huber
By Philip V. Permut