Volume 56; 2003-2004 • Issue 2

Editor’s Note

Articles

WHY THE WORLD RADIOCOMMUNICATION CONFERENCE CONTINUES TO BE RELEVANT TODAY
by Kathleen Q. Abernathy

This Article by FCC Commissioner Kathleen Q. Abernathy critiques the continued importance of the World Radiocommunication Conference (“WRC”), and its role in international communications affairs. The Article analyzes the most recent WRC in Geneva, Switzerland from a critical modern perspective. Abernathy explores the accomplishments of the most recent WRCs, while addressing concerns that the WRC process is slow and outdated. First, the Author argues that the WRC provides an international forum to maximize the global harmonization of the radiocommunications spectrum resource. Second, the Author posits that the WRC decision-making process creates technical and operational certainty for new and existing users. Finally, the Author emphasizes the continuing need for WRCs and suggests that the WRC process is essential for sound global spectrum management into the twenty-first century.

REHEARSAL FOR MEDIA REGULATION: CONGRESS VERSUS THE TELEGRAPH-NEWS MONOPOLY, 1866-1900
by Menahem Blondheim

In this Article, Menahem Blondheim presents a critical historical analysis of the dawn of communications regulation as it began with the evolution of domestic telegraphy and developed into a coherent link between 19th century technological, business, and social developments and twentieth century First Amendment thought. First, the Article examines the political and economic environment which led to the development of national telegraph and news networks, like Western Union and the Associated Press. The Author then proceeds to assess the role of the mid-to-late nineteenth century American legislature, and how the debate over telegraph and wire service regulation realigned the powers of government, judiciary, and corporate America. Next, the Article explores the tensions that developed with respect to the Associated Press and Western Union monopolies, and how the judiciary entered the scene of communications regulation at this critical juncture. Finally, the Author suggests that the history of the development of this early communications network frames current legal debates over the proper roles of government and private industry in the communications regulatory environment.

UNMASKING HIDDEN COMMERCIALS IN BROADCASTING: ORIGINS OF THE SPONSORSHIP IDENTIFICATION REGULATIONS, 1927-1963
by Richard Kielbowicz and Linda Lawson

This Article by Richard Kielbowicz and Linda Lawson is an exploration of the origins of sponsorship identification regulations as they pertained to early radio and television programming. Beginning with the statutory sponsorship identification requirement enacted in 1927, the Authors trace the development of sponsorship identification rules in the communications industry. By arguing that such rules express a basic goal of American communication law and policy, Kielbowicz and Lawson analyze trends and developments in sponsorship regulation that did not materialize in the 1930s and 1940s because of the nature of early broadcast sponsorship. The Authors then assert that those same early rules proved unexpectedly useful in dealing with a 1940s’ controversy over covert political promotions. Next, the piece reveals that the FCC failed to apply the rule to broadcast practices that had become commonplace in the 1950s, such as quiz show rigging, payola and plugola. The Article then analyzes the 1960 amendments to the Communications Act and examines the resulting rules, which unsuccessfully proposed extending the rules into broadcasters’ financial interests. Finally, the Authors conclude by analyzing the dynamics that produced the 1963 regulations.

Notes

ROCKING WRIGLEY: THE CHICAGO CUBS’ OFF-FIELD STRUGGLE TO COMPETE FOR TICKET SALES WITH ITS ROOFTOP NEIGHBORS
by Ronnie Bitman

Wrigley Field, home of the Chicago Cubs, is one of the most unique and beloved baseball stadiums in the country. In recent years, however, the owners of several rooftop viewing platforms near the stadium provided the Cubs with unwanted off-field competition for ticket revenues. This Note discusses the intersection of sports, property rights, and copyright law in the context of recent dilemmas and litigation by professional sports organizations and teams. Although this Note briefly touches on the Lanham Act, the Author’s focus remains on copyright law and the FCC’s support for proprietary rights in sports.

FINDING SUBSTANCE IN THE FCC’S POLICY OF “SUBSTANTIAL SERVICE”
by Jennifer Prime

An FCC license for the use of the electromagnetic spectrum is a valuable asset, but it exists only for a limited duration. Therefore, obtaining a license renewal is vital to a licensee, especially one who has participated in an auction and made substantial investments in order to obtain the rights the license confers. This Note describes the mechanisms by which licensees obtain greater certainty that their licenses will be renewed, including the concept of renewal expectancy. One form of such expectancy is the ambiguous “substantial service” requirement. This Note explains the origins of the term, discusses its current uses, and shows how this requirement is linked to the FCC’s policy of flexible use. This Note explores how, when the policy of substantial service is used to promote flexible use, potential problems arise. Specifically, this Note asks whether substantial service, as applied to licenses issued under broad service rules designed to promote the widest possible variety of use, creates too ambiguous a standard for licensees to know with sufficient certainty that their licenses will be renewed. Additionally, this Note questions whether the substantial service standard, as it is currently applied, consistent with the goals of the Communications Act of 1934, as amended. The Author argues that these problems can be solved by either the FCC returning to the policy of specifically announcing service benchmarks or through legislative change that would eliminate the requirement that a licensee must demonstrate compliance with service requirements.

LEGISLATING THE TOWER OF BABEL: INTERNATIONAL RESTRICTIONS ON INTERNET CONTENT AND THE MARKETPLACE OF IDEAS
by Michael F. Sutton

The First Amendment to the U.S. Constitution protects the expression of diverse viewpoints in virtually any medium. Nevertheless, the modern novelty of “borderless” communication via the Internet strains our ideal of keeping government out of the business of regulating speech. This Note reveals the conflict between the First Amendment’s national protections and the Internet’s lack of national boundaries, while also arguing for international intervention for the protection of free speech. This Author articulates the real danger of “watered-down speech” unless both the FCC and the international community provide regulations and harmonized international standards for online content that reflect First Amendment protections.

Book Review

A LOSING BATTLE FOR ALL SIDES: THE SAD STATE OF SPECTRUM MANAGEMENT
by Gregory L. Rosston

A review of Spectrum Wars: The Policy and Technology Debate by Jennifer A. Manner. In this 2003 publication, the author goes a level further than most spectrum analyses do, by attempting to integrate the complex relationship between domestic spectrum policy and international spectrum concerns. Spectrum Wars can be divided into three major parts: a deep background of the institutional detail of the frequency management process, a description of the tensions between different theories on how to change spectrum management,and finally, a view about how the changes in the telecommunications marketplace may affect future spectrum management proceedings.