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Volume 53; 2000-2001 • Issue 3


Editor’s Note


A Subsidy by Any Other Name: First Amendment Implications of the Satellite Home Viewer Improvement Act of 1999
by Andrew D. Cotlar

The Satellite Home Viewer Improvement Act of 1999 (“SHVIA”) changed the face of the market for television video services by authorizing direct broadcast satellite carriers to carry local television stations within their own local markets. This Article discusses the carriage provisions of SHVIA, currently the subject of a First Amendment challenge in the U.S. District Court for the Eastern District of Virginia and also the basis upon which the Federal Communications Commission recently issued new rules. SHVIA poses some very interesting, potentially far-reaching First Amendment issues. This Article examines the mechanics of the law, as well as its constitutional implications.

The Public Interest Standard: Is It Too Indeterminate to Be Constitutional?
by Randolph J. May

This Article argues that the congressional delegation of public interest authority to the FCC likely violates the nondelegation doctrine that inheres in the constitutional separation of powers scheme and that, even if the courts do not hold the public interest delegation unconstitutional, Congress should revise the Communications Act to set forth more specific guidance for the FCC. In today’s environment of “convergence,” in which competition is flourishing across communications sectors, Congress should not shirk its responsibility to establish fundamental policy for an industry that contributes so much to the overall health of our economy. This Article argues that Congress should not wait to be compelled by the courts to replace the public interest standard with more specific guidance to the FCC, guidance which hopefully will provide an unmistakable roadmap toward a deregulatory end game consistent with a competitive marketplace.

The FCC’s Main Studio Rule: Achieving Little for Localism at a Great Cost to Broadcasters
by David M. Silverman & David N. Tobenkin

Localism, the communications law policy that requires spectrum licensees to serve the needs of local communities, represents a bedrock concept in the Communications Act and the Federal Communications Commission’s jurisprudence. The Commission’s sixty-year-old main studio rule provides a vivid example of this principle. Broadcasters often find compliance with this rule difficult and an exercise in form over substance, raising legitimate questions about the continued need and rationale for the rule. This Article examines the rule’s evolution and its current problematic state, and analyzes whether its modification or elimination would better conserve the resources of both broadcasters and the Commission, without having any detrimental impact on the public interest. The Article concludes that the main studio rule should be abolished or, alternatively, recast into a more limited and precise form.


The Best Laid Plans: How Unrestrained Arbitration Decisions Have Corrupted the Uniform Domain Name Dispute Resolution Policy
by Ian L. Stewart

In the rapidly changing Internet age, a sound dispute resolution policy is needed to address conflict where traditional rights intersect emerging technologies. This Note examines how unfettered arbitration decisions, even those made with the best of intentions, can corrupt a good dispute resolution policy, as is the case with the Uniform Domain Name Dispute Resolution Policy. The Note provides background information on ICANN, domain disputes regarding cybersquatting and reverse domain hijacking, and the Policy. It then explains how ICANN’s dispute resolution providers’ expansive decisions have weakened the Policy by removing the internal limitations that made it strong and effective. Finally, this Note offers a discussion of how the Policy can still be saved through the exercise of restraint by ICANN’s dispute resolution providers.

Paved With Good Intentions: How InterLATA Data Relief Undermines the Competitive Provisions of the 1996 Act
by Jean F. Walker

In the past few decades, the competitive climate has transformed for telecommunications companies from unification to fragmentation and back again. Rapidly changing technologies have created a “digital divide”—a technological gap between the “haves” and the “have nots.” H.R. 1542 attempts to solve the problem of the digital divide by providing Bell operating companies with expansive interLATA relief for data services. Although this bill has been a long time in the making, its sponsor, Representative Tauzin, recently reintroduced it in committee. This Note examines the problem of the digital divide, and provides the context in which H.R. 1542 developed. It also discusses alternatives to changing the current law and why these alternatives are far superior to H.R. 1542’s heavy-handed solution. Finally, this Note argues that the critical shortcoming of proposals like H.R. 1542 is not that they are ill-fitting, duplicative solutions to the problem of the digital divide, but that they will harm consumers in rural and urban areas by eliminating choice and raising prices.


Use of Public Record Databases in Newspaper and Television Newsrooms
by Brooke Barnett

After almost fifty years of unprecedented freedom, access to public records is under threat today at the state and federal level. Survey research and in-depth interviews of newspaper and television journalists show that public records are being obtained through several mechanisms, including databases. This Comment, together with its underlying study, illustrates that these databases are essential to developing certain stories, including some covering the most critical subjects: investigative reports, crime, and political stories. Therefore, this Comment argues, restricting access to public records has the potential to halt or substantially hinder the media’s ability to serve as a check on business and government.