Volume 51; 1998-1999 • Issue 2

Table of Contents

Editor’s Note

Articles

The Fairness Doctrine Is Dead and Living in Israel
By Amit M. Schejter
The fairness doctrine has long been eliminated as required conduct for broadcasters in the United States. When enforced, it meant both being required to discuss controversial issues and to represent them in a fair way. In Western Europe, where only public service broadcasters existed until quite recently, a different doctrine emerged—the doctrine of impartiality. Under this doctrine, broadcasters were to refrain from being partial in any way. In Israel, a hybrid solution was adopted: While the system was designed in the Western European way, the courts have been insisting for years that the American fairness doctrine is the norm for achieving political neutrality. This study describes this phenomenon and the way it emerged, and questions its contribution to free speech in a volatile democracy.

Federal Preemption of State Universal Service Regulations Under the Telecommunications Act of 1996
By Mark P. Trinchero & Holly Rachel Smith
With the passage of the Telecommunications Act of 1996, Congress revamped federal universal service policy by requiring that universal service support be explicit. The Act also provides that states can supplement federal universal service support with state universal service support. However, under section 254(f) of the Act, state programs must not be “inconsistent with” the FCC’s rules for implementing the Federal Plan. Section 254(f) provides for express preemption of state universal service plans but uses FCC rules as a measure for determining when preemption is required. As a result, the case law governing express preemption by Congress is in and of itself an insufficient guide for determining the scope of the section 254(f) preemption power. To interpret section 254(f), case law governing preemption by the FCC of state law must also be incorporated. Thus, a three-pronged test is required to determine whether a state universal service plan is preempted by section 254(f). This test should provide a framework for determining whether state law is preempted by any section of the Communications Act of 1934.

Cap-Sized: How the Promise of the Price Cap Voyage to Competition Was Lost in a Sea of Good Intentions
By Gregory J. Vogt
This Article explores the Federal Communication Commission’s efforts to regulate into being marketplace economic forces through price cap regulation. A comprehensive analysis of the history and policies behind price cap regulation of LECs offers guidance for the future. Ultimately, while progress towards local exchange competition has been made, certain important adjustments should be implemented to allow price caps to achieve their full potential. These changes, consistent with the original theory of price caps, will in turn help speed the transition to competition.

Notes

Playing the Name Game: A Glimpse at the Future of the Internet Domain Name System
By Rebecca W. Gole
As the Internet continues to expand into the top global medium for commerce, education, and communication, individuals and businesses are racing to claim their own unique Internet address or domain name. Unlike the three-dimensional world, where many entities may share the same name, on the Internet each domain name must be unique. As a result of this uniqueness requirement, a variety of disputes and trademark issues have arisen as individuals and entities compete for lucrative domain names on the Internet market. These disputes have led to the submission of two proposals for the overhaul of the current domain name system. This Note analyzes both the Internet Ad Hoc Committee’s and the United States’ proposals, and recommends additional provisions that should be implemented in order to have a successful global domain name system for the future.

To Net or Not to Net: Singapore’s Regulation of the Internet
By Sarah B. Hogan
Internet access has become almost commonplace, as has the unfettered exchange of ideas through cyberspace. Several nations, Singapore among them, have attempted to control their citizens’ Internet access in order to preserve and protect a desired national culture. A brief overview of the technological means of Internet censorship reveals a hidden truth: If Singapore truly wishes to become the technological giant of the East, the government will have to sacrifice its desire to control Internet content.

Betting on the Net: An Analysis of the Government’s Role in Addressing Internet Gambling
By Stevie A. Kish
The Internet Gambling Prohibition Act represents the U.S. Senate’s response to the development of a new online industry—Internet gambling. While this ban could arguably reduce the dangers associated with Internet gambling, such as fraud and addiction, it can only do so by exacting a substantial cost on principles of federalism. Rather than enacting this federal prohibition, Congress should instead leave the issue of whether Internet gambling should be legalized to the states.

Employer Liability for Employee Online Criminal Acts
By Jeffrey S. Nowak
While the computer and Internet have served as the foundation for a more efficient and effective workplace, they have also wreaked havoc on employers. Employees are increasingly using work-related time to enter the Information Superhighway to commit criminal acts upon third parties outside the employer’s business. Can an employer be held liable for such acts when they are committed using the employer’s computer and Internet system? While the doctrine of respondeat superior may shield employers from liability, the theory of negligent retention or supervision may allow injured parties a second bite at the employer liability apple. Because legislatures and courts have been slow to enact legislation and establish standards for this potential liability, employers must take appropriate precautions against the potential criminal activities of their employees. This Note offers employers proactive steps that can be taken to avoid this liability.

Comment

The First Amendment Case Against FCC IP Telephony Regulation
By Tuan N. Samahon
This Comment argues that IP telephony, like handbills and traditional print media, deserves First Amendment protection against FCC regulatory authority. After briefly reviewing the IP telephony phenomenon within the larger context of “digital convergence,” the Comment examines the FCC and Supreme Court’s technologically driven First Amendment jurisprudence—particularly, the First Amendment’s conspicuous absence from the IP telephony dialogue, and, correspondingly, the prominence of assurances of regulatory forbearance in Congress, the courts, and the FCC. In response, the Author offers First Amendment content-based and content-neutral arguments against the proposed telephony regulations. At the very least, the affordability and innovation IP telephony offers should constitute nontrivial factors in a court’s content-neutral balancing. Finally, the Comment proposes divorcing universal access funding from long-distance service as an approach to avoid burdening the First Amendment values IP telephony serves as well as side-step the category difficulties digital convergence creates.

Addendum

From International Competitive Carrier to the WTO: A Survey of the FCC’s International Telecommunications Policy Initiatives 1985-1998
By Lawrence J. Spiwak

Book Review

Whither to Regulate?
By Patrick A. Miles, Jr.