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Volume 55; 2002-2003 • Issue 1

Editor’s Note


Making and Keeping Regulatory Promises
by Warren G. Lavey

Multiyear regulatory commitments, or their absence, are an important part of the functioning of the telecommunications services and products industries. In this Article, Warren G. Lavey argues that, under some conditions, it is both possible and beneficial for regulators to commit to a well-defined, multiyear sequence of regulatory changes. First, this Article examines several examples of how efforts for comprehensive reform fared in real multiyear implementations. It also explores how some piecemeal regulatory changes evolved into efforts for comprehensive reform based on a well-defined sequence. This Article considers the effects of multiyear regulatory promises through analysis of several regulatory actions involving telecommunications carriers in Mexico, Venezuela, Hungary, and the United States. The Article then presents two conclusions about making and keeping regulatory promises-regarding procedures and benefits-and analyzes an example of a multiyear promise in the United States with too much uncertainty about timing, carriers’ obligations, and regulatory standards. Lastly, the Article summarizes the conclusions and recommendations for promoting greater use of multiyear regulatory plans.

The Regulation of Interactive Television in the United States and the European Union
by Hernan Galperin and François Bar

The broadcasting industry is rapidly entering the era of digitization, distributed intelligence, and interactivity. The case of interactive television offers an opportunity to investigate how desirable policy goals should be implemented in the post-convergence environment. This Article first reviews the evolution of the broadcasting industry through three successive models: the traditional “Fordist” television model, the current multichannel television model, and the emerging ITV model. Second, it characterizes the basic components of ITV and explores the concerns raised by the evolution of multichannel video programming distributors into ITV platform operators. Next, the Article reviews how regulators in the United States and the European Union have so far responded to these concerns by contrasting two prominent cases: the AOL/Time Warner merger and British Interactive Broadcasting joint venture. Finally, the Article concludes with a general framework for regulatory thinking about open network access that reflects the convergence of communications industry sectors and the need to integrate seemingly conflicting policy goals.

The U.S. Supreme Court Addresses The Child Pornography Prevention Act and Child Online Protection Act in Ashcroft v. Free Speech Coalition and Ashcroft v. American Civil Liberties Union
by Sue Ann Mota

Both the Child Pornography Prevention Act (“CPPA”) and the Child Online Protection Act (“COPA”) were intended by Congress to protect minors. The CPPA was intended to protect minors from the harmful effects of virtual child pornography. The COPA was intended to protect minors from pornography currently available commercially on the World Wide Web. However, in 2002, the U.S. Supreme Court addressed the constitutionality of both statutes: The Court struck down sections of the CPPA as overbroad and unconstitutional in Ashcroft v. Free Speech Coalition. In Ashcroft v. ACLU, the Court upheld some sections of COPA as not unconstitutionally overbroad, but expressed no view as to whether other provisions were overbroad, whether the statute is vague, or whether COPA survives strict scrutiny. Currently, neither statute is being enforced, despite the statutes’ laudable motives to protect children. This Article predicts the future of COPA and recommends further congressional action to protect minors from the harmful effects of both virtual and real child pornography, and from accessing pornography on the Web.


Enhancing Competition:Are Proposed Federal Communications Commission Rules That Treat Local Exchange Carrier Access To Multiple Tenant Environments a Taking?
by Kathryn Gordon

The Telecommunications Act of 1996 marked a fundamental change in the attitudes of Congress and the Federal Communications Commission toward local telephone exchange carrier policy. This change affected local exchange carriers in many ways, including their relationships with the owners of multiple tenant environments, such as office buildings and apartment complexes. Under the Act, FCC rulemaking increased competitive local exchange carriers’ access to the facilities of incumbent local exchange carriers by removing competition barriers. However, owners of of multiple tenant environments can also act as barriers to local exchange carrier competition. This Note will first review the general purpose behind the 1996 Act. It will then outline the history of local exchange carrier access to of multiple tenant environments. Finally, this Note will examine questions related to proposed FCC rules for nondiscriminatory local exchange carrier access to multiple tenant environments.

Veil of Secrecy: Public Executions, Limitations on Reporting Capital Punishment, and the Content-Based Nature of Private Execution Laws
by Nicholas Levi

One issue that is often overlooked in the capital punishment debate is the policy to shield the public from the specifics of the application, administration, and resolution of the death sentence. First, this Note provides a brief historical and analytical account of capital punishment in this country, and ultimately argues that this historical backdrop forces courts to characterize regulations as content-based distinctions on free speech. Second, this Note provides a background of the methods of capital punishment from the time of the country’s founding through the early parts of the twentieth century. Furthermore, this Note will address the emergence of private execution laws and argue that these laws arose in direct response to anti-death penalty movements throughout the nineteenth century. This Note then provides an analysis of the Supreme Court’s freedom of the press jurisprudence, focusing on the “right of access” to government proceedings. Additionally, this Note addresses the most recent manifestation of this movement: attempts to broadcast executions to the general public. In conclusion, this Note will argue that these challenges have ultimately failed because of their characterization as “access” cases.

Book Review

What’s In a Name
by Jonathan Zittrain

A review of Milton L. Mueller’s Ruling the Root, The MIT Press, 2002. In the spring of 1998, the U.S. government told the Internet: Govern yourself. This unfocused order-a blandishment, really, expressed as an awkward “statement of policy” by the Department of Commerce, carrying no direct force of law-came about because the management of obscure but critical centralized Internet functions was at a political crossroads. In Ruling the Root, Mueller thoroughly documents the colorful history both before and after this moment of inflection, and gives a fair appraisal both of the interests at stake and of the ways in which those interests have influenced the course of that history.