Volume 63; 2010-2011 • Issue 1

Table of Contents

Essays from Time Warner Cable’s Research Program on Digital Communications

The Challenge of Developing Effective Public Policy on the Use of Social Media by Youth
By John Palfrey

The Challenge of Increasing Civic Engagement in the Digital Age
By Nicol Turner-Lee, Ph.D

The Future of Digital Communications Research and Policy
By Scott Wallsten

The Challenge of Increasing Broadband Capacity
By Dale N. Hatfield

The Changing Patterns of Internet Usage
By Christopher S. Yoo

Articles

Revisiting the Regulatory Status of Broadband Internet Access: A Policy Framework for Net Neutrality and an Open Competitive Internet
By Lee L. Selwyn and Helen E. Golding
A decade of broadband access deregulation has landed the FCC at a legal deadend. After the D.C. Circuit’s Comcast decision, the FCC finds itself unable to enforce its “net neutrality” goals. To reassert its jurisdiction over “net neutrality,” the FCC proposes to reclassify broadband Internet access as a Title II “telecommunications service” while continuing to forbear from most other facets of common carrier regulation. The FCC’s current dilemma results from an unfortunate combination of unverified predictive judgments associating deregulation with investment; overly optimistic assessments of competition in the consumer broadband market; the abandonment of the “bright line” between transmission and content; and elimination of unbundling requirements for broadband services. The FCC needs now to revisit—and revise—the factual, legal and policy judgments that have brought it to the current situation. Reclassification is factually and legally the proper regulatory course, but its benefits would be seriously undermined by broad presumptive forbearance. Last mile broadband Internet access offered by incumbent local exchange carriers and cable companies is unambiguously pure transmission, i.e., telecommunications service. Facilities-based Internet access providers should be required to offer downstream rivals equivalent last-mile broadband access as a wholesale telecommunications service on a nondiscriminatory basis; under this framework, telcos and cable companies could continue offering broadband bundled with content and applications as competitive, non-regulated information services. Given the demonstrated ability of facilities-based carriers to use their control of bottleneck last mile access to discriminate against downstream rivals, there can be no justification for the FCC to forbear from applying most Title II obligations to broadband access providers. Combining these two threads, the authors conclude that by restoring competitors’ ability to purchase “basic” broadband access as a platform for their own retail Internet access entry, the FCC has the opportunity to create more competition, with less explicit net neutrality regulation, than by reclassification alone.

Deliberative Democracy on the Air: Reinvigorate Localism—Resuscitate Radio’s Subversive Past
By Akilah N. Folami
There has been considerable scholarship exploring the need to breathe deliberative life back into the localism standard by requiring broadcasters to include more meaningful local news and public affairs programming, pursuant to the public interest obligations imposed on radio licensees. There has been little scholarly attention, if any, however given to broadening understandings of localism to include music and popular cultural expression for the purpose of furthering deliberative discourse in particular, rather than solely for entertainment purposes. This Article focuses on a particular moment in radio and America’s cultural history that was rife with struggles over constructions of identity, and with contests over meaning between dominant ideological frameworks and voices of subversion that challenged these dominant normative understandings, all within a very commercialized, corporately controlled media environment. Specifically, this Article focuses on the rise of rock and roll on commercial radio and of the White rock and roll disc jockey, who came to represent the pulse of the historically marginalized (pre-World War II), White American youth. By exploring this snapshot in history of radio’s subaltern past via the playing of rock and roll by radio disc jockeys on White radio, at a time when the nation’s radio air waves, like the larger society, were racially segregated, and during what some have defined as the long progression into America’s Cultural Revolution, this Article builds on the scholarship of others that have considered radio’s influence on popular culture, discursive democracy, and the struggles over constructions of identity. This Article expands upon such analysis, however, by exploring the law’s role, specifically, FCC localism rules and policies in effect at that time, in this contest over meaning and the deliberative process: a role that must be taken into account as the FCC, Congress, and the courts reconsider current media policy in light of the public outcry over the lack of diverse content on the nation’s radio airwaves.

Pacifica Reconsidered: Implications for the Current Controversy over Broadcast Indecency
By Angela J. Campbell
In 2009, the Supreme Court upheld the FCC’s finding in Fox TV Stations v. Federal Communications Commission that the broadcast of “fleeting expletives” violated a federal law prohibiting the broadcast of indecency, but remanded the case for consideration of the broadcast networks’ claims that the FCC action violated the First Amendment. On remand, the Second Circuit found that the FCC’s prohibition against “fleeting expletives” was unconstitutionally vague. It is widely expected that the Supreme Court will review this decision and that the networks will ask the Court to reconsider its 1978 decision in Pacifica Foundation v. Federal Communications Commission. This Article reexamines the Pacifica case, using papers of some of the Justices who decided the case and interviews with some of the participants. It traces how the FCC came to issue a declaratory order in 1975 finding that the radio broadcast of George Carlin’s “Seven Dirty Words” violated the same federal law at issue in the Fox case. It explains how, to the surprise of many observers at the time, the FCC successfully defended its action against a First Amendment challenge in the Supreme Court by portraying its order as a narrow ruling applicable only to the specific facts of that case. Nonetheless, Pacifica came to be understood as establishing a broadly applicable rule prohibiting the broadcast of “indecent” content when children are likely to be in the audience. The Article concludes that while Pacifica does not compel a ruling either way on the constitutional question in the Fox, the history of the Pacifica case suggests that individual adjudications, such as those in Fox and CBS, are not good vehicles for setting forth policy with regard to broadcast indecency.

Notes

From One [Expletive] Policy to the Next: The FCC’s Regulation of “Fleeting Expletives” and the Supreme Court’s Response
By Brandon J. Almas
After the broadcast of the 2003 Golden Globe Awards, during which the lead singer from U2 uttered an expletive on national television, the FCC revisited its prior policy on the use of expletives on the airwaves and declared, for the first time, that “fleeting expletives” are offensive according to community standards and are therefore finable. In a lawsuit filed in the Second Circuit Court of Appeals, Fox Television Stations, Inc. along with a number of other broadcasters argued that the FCC’s new policy was arbitrary and capricious under the Administrative Procedure Act and unconstitutional under the First Amendment. The Second Circuit agreed that the policy was arbitrary and capricious. The U.S. Supreme Court reversed, holding that the FCC’s new policy did not violate the Administrative Procedure Act, but did not address the First Amendment issue. This Note begins by arguing that the First Amendment issue will eventually resurface before the Court, at which point the Court will have to finally resolve the question whether the FCC’s new policy violates the First Amendment. This Note then attempts to predict how the Court will come out on the First Amendment question by analyzing various models of judicial decision making and applying them to the facts of the case. Based on a contention that the attitudinal model dominates judicial decision making, this Note concludes that the outcome will ultimately depend on who occupies the seats on the bench. This Note then evaluates the attitudes of the current justices, including Sonia Sotomayor and Elena Kagan, and attempts to draw inferences based on their prior judicial records, as well as other signs of their attitudes and ideologies. Finally, this Note concludes that a future challenge to the FCC’s new policy on First Amendment grounds will be resolved in favor of the broadcasters and will pave the way for a new era in broadcast regulation.

Examining the FCC’s Indecency Regulations in Light of Today’s Technology
By Elizabeth H. Steele
Indecency regulations promulgated by the FCC used to be effective, but today’s technological advances call those regulations into question. With the prevalence of digital video recorders and the availability of television shows on the Internet, children have unprecedented access to material broadcast at all times of day. As a result, the “safe harbor” rationale restricting the broadcast of indecent material no longer makes sense. A move toward deregulation is the most logical step to take, as it would prevent any First Amendment violations and would allow the networks freedom to broadcast material that the public may be interested in without fear of repercussions.

Combating Cyberbullying: Emphasizing Education over Criminalization
By Jessica P. Meredith
The advent of new technologies such as social media websites like MySpace and Facebook have increased the methods through which bullying takes form and causes harm to children and teenagers. As the public has become more aware of the dangers of this new form of bullying, cyberbullying, legislators have responded by proposing legislation to criminalize this type of behavior with varying degrees of success. This Note explains the problem of cyberbullying and evaluates state and federal legislative efforts to combat the issue through criminalization, then argues that prevention through education will be the most effective solution. Unlike criminalization, educational initiatives are not likely to lead to overcriminalization, jeopardize First Amendment freedoms, or rely too heavily on prosecutorial discretion. Rather, they are more easily adaptable, and thus more able to adjust to and incorporate changing technology and any associated dangers. Rather than focusing on where to draw lines in criminalizing cyberbullying, legislators need to focus on increasing awareness of through education on the associated dangers in order to best prepare children to avoid and deal with cyberbullying and its related technological hazards.