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Volume 62; 2009-2010 • Issue 1


Advancing Consumer Interest Through Ubiquitous Broadband: The Need for a New Spectrum
by Commissioner Meredith Attwell Baker

Comprehensive and long-term spectrum reform can play a critical role in the FCC’s development of a National Broadband Plan and in its consideration of Open Internet rules. More efficient and intensive use of the nation’s spectrum resources would help provide a path to greater broadband deployment, competition and innovation for all consumers. Wireless and mobile technologies hold great promise to offer consumers new services to complement, extend, or even replace existing broadband offerings. A comprehensive review of the nation’s spectrum policy is, therefore, necessary to ensure that wireless and mobile broadband services are not hamstrung by outdated rules or command-and-control spectrum allocations.

Spectrum reform should include three main components. First, the FCC should focus on understanding how existing spectrum allocations are used currently while ensuring that all existing allocations are made available to providers in a timely manner. Second, the FCC should review its allocation and spectrum sharing rules to promote more efficient spectrum usage. Third, the FCC should ensure its regulatory approach fosters innovative technologies and more efficient uses of spectrum.


Creating Effective Broadband Network Regulation
by Daniel L. Brenner

The Internet is central to the business and pastimes of Americans. Calls for increased regulation are ongoing, inevitable, and often justified. But calls for network neutrality or nondiscrimination assume with little hesitation federal agency competence to give predictable and accurate meaning to these terms and create regulations to implement them. This Article’s chief contribution to Internet policy debate is to focus attention on the likelihood of successful FCC Internet regulation-a key assumption of some advocates.

The Article analyzes three characteristics that hobble the FCC, which is the likeliest federal agency to provide prescriptive rules. First, the record for the agency on a host of industry decisions where technology plays a pivotal role tilts decidedly against counting on successful regulation. Second, the technology here is unlike anything the FCC has successfully regulated before. Judging networks, which are constructed and operated for maximum private gain and not based on a government-approved rate of return model, isn’t among them. Finally, the agency itself has yet to demonstrate that it is the best locus of power for deciding the fate of the Internet. The political economy of the FCC makes it less successful as an expert agency.

This Article focuses on two somewhat interrelated solutions: reliance on the shame/Wiki/blog culture of the Internet and disclosure of management practices by network providers, enforceable under contract. These approaches are congenial with the most basic Internet values of information transparency and sharing.

Network Neutrality Between False Positives and False Negatives: Introducting a European Approach to American Broadband Markets
by Jasper P. Sluijs

Network neutrality has become a contentious issue both in Europe and the United States. Regulators on both sides of the Atlantic face digital divides in their society, and are confronted with potentially conflicting policy goals-to incentivize private investment in next-generation broadband while maintaining neutral and competitive broadband networks.

This Article compares nascent American and European network neutrality policy in terms of regulatory error costs. Emerging markets, such as broadband, are more likely to be affected by regulatory errors, and these errors have graver consequences in emerging markets than in regular markets. U.S. telecommunications policy traditionally has advanced a trial-and-error approach of categorical intervention against specific regulatory errors. However, analysis shows that categorical regulation misrepresents the complexity of network neutrality and emerging broadband markets. European policy, on the other hand, may have the potential to employ a dynamic regulatory mechanism that allows for targeting more regulatory errors at once; however, it fails to live up to this promise with network neutrality.

Therefore, this Article recommends that U.S. policymakers develop an analytic and dynamic regulatory model for network neutrality, which builds on European precedent yet learns from European regulatory mistakes. A practical reform scenario suggests that such a model is best implemented by the FCC, which has the opportunity to draft a comprehensive national broadband plan under the Recovery Act. With regard to its national broadband plan, the FCC should position itself to monitor broadband markets and deal with network neutrality in a flexible and transparent manner.

Universal Service in the United States: A Focus on Mobile Communications
by Steve G. Parsons and James Bixby

The concept of universal service, providing affordable telecommunications to all citizens, has a long and changing history in the United States. Prior to the Telecommunications Act of 1996, efforts to achieve universal service were largely based on a complex web of implicit subsidies to basic landline local exchange residential service. The Act expanded and codified the concept of universal service and made the subsidies largely explicit. This Article evaluates the possible economic rationales for subsidizing voice communications and find them lacking. This Article argues that the weak rationale for subsidizing basic voice communications makes it critical that U.S. universal-service policy be competitively neutral with respect to firms and technologies in order to minimize distortions of market processes. However, past regulatory policies have favored wireline vis-ˆ-vis mobile technologies. Moreover, four recent regulatory events threaten to perpetuate and exacerbate the asymmetric treatment of mobile technologies. The recent appointment of three new FCC commissioners may provide an opportunity for more economically rational and competitively neutral policy and funding mechanisms in the future.


Whose Burden is it Anyway? Addressing the Needs of Content Owners in DMCA Safe Harbors
by Greg Jansen

Much of today’s network neutrality debate addresses concerns that cable providers will limit access to competing Web-based services delivering multimedia content. While proposals to mandate nondiscrimination for all Internet traffic surely will help create a competitive environment where online entertainment providers can prosper, ISP interference is not the only threat. Online entertainment sites that relay user-generated content are threatened by crippling litigation brought by copyright holders for actions taken by third parties using their services. Reliance on the safe harbors provided in the Digital Millennium Copyright Act has, in most cases, proved unsuccessful. This Note addresses the concerns of both copyright holders and online service providers by looking at the pending $1 billion Viacom v. YouTube litigation, concluding that more liberal use of the safe harbor’s standard technical measure provision will satisfy both parties’ interests. The proposed solution will limit the threat posed by online service providers to content owners while simultaneously encouraging online commerce and competition by reducing the threat of litigation.

Virtually Enabled: How Title III of the Americans with Disabilities Act Might Be Applied to Online Virtual Worlds
by Joshua Newton

The rise and popularity of online virtual worlds, such as World of Warcraft and Second Life, holds significant promise for people with disabilities. For people who are unable to easily leave home or travel, virtual worlds provide a public venue, wherein people may interact freely without the social stigma that accompanies disability. However, access to these virtual worlds may be inhibited by physical, visual, or aural impairments, and virtual-world developers can be hostile to modifying their products to mitigate these difficulties. Thus, some disability advocates have turned to Title III of the Americans with Disabilities Act, arguing that places of public accommodation should include both concrete and virtual places, and that the providers of online services should be held to Title III’s accessibility provisions.

This Note discusses the history of Title III jurisprudence as it applies to places of public accommodation other than physical structures, and the current circuit split over whether the Americans with Disabilities Act may apply at all when there is no physical structure. Some circuits argue that, in order for Title III to apply, the discriminatory access must bear some nexus with a place of public accommodation enumerated by the statute. The other circuits have, at least in dicta, permitted the application of Title III to electronic or online places, but have distinguished between requiring accessibility to products and services offered, and requiring alteration of the products and services themselves to accommodate people with disabilities.

Because of the nature of online virtual worlds, neither line of precedent is especially amenable in application. Therefore, this Note looks to alternative definitions of place offered in other student notes for solutions apposite to online virtual worlds. The solution this Note offers looks to the character of the virtual world as a platform for the sale of products in commerce.