Volume 64; 2011-2012 • Issue 1

Table of Contents

Articles

When Does F*** Not Mean F***?: FCC v. Fox Television Stations and a Call for Protecting Emotive Speech
By W. Wat Hopkins
The Supreme Court of the United States does not always deal cogently with nontraditional language. The most recent example is FCC v. Fox Television Stations, in which the Justices became sidetracked into attempting to define the f-word and then to determine whether, when used as a fleeting expletive rather than repeatedly, the word is indecent for broadcast purposes. The Court would do well to avoid definitions and heed Justice John Marshall Harlan’s advice in Cohen v. California to provide protection for the emotive, as well as the cognitive, element of speech.

Antitrust Review of the AT&T/T-Mobile Transaction
By Allen P. Grunes and Maurice E. Stucke
In August 2011, the United States brought a landmark antitrust lawsuit to prevent the merger of two of the nation’s four largest mobile wireless telecommunications services providers, AT&T Inc. and T-Mobile USA, Inc. The Article reviews the proposed $39 billion acquisition under federal merger law, under the U.S. Department of Justice and Federal Trade Commission’s 2010 Horizontal Merger Guidelines, and with a focus on possible remedies. The authors find that the proposed transaction is presumptively anticompetitive and the merging parties in their public disclosures failed to overcome this presumption. The authors explain how, under several different plausible theories, there is reason to believe that the transaction may result in diminished competition and higher prices to consumers. Finally, on the question of possible remedies, the authors conclude that there is a high likelihood that divestitures and/or behavioral remedies would not solve the competitive problems, and make the case for enjoining the acquisition.

Spectrum Reallocation and the National Broadband Plan
By Jeffrey A. Eisenach
Of the several significant changes in United States telecommunications policy proposed by the National Broadband Plan, none are more substantial than its proposals for spectrum policy. In particular, the Plan proposes to reallocate 500 MHz of spectrum from broadcast television, mobile satellite, government and other current uses to “mobile broadband” through the use of innovative “incentive auctions” and other voluntary, market-oriented mechanisms. The Plan’s spectrum proposals have the potential to be a major step forward in the decades-long, bipartisan effort to replace “command-and-control” spectrum allocation with a more flexible, dynamic and market-oriented approach. Considerable work remains to be done, however, and only time and future developments will tell whether the Plan signals a significant step towards a more market-oriented policy.

Putting a Price on Dirt: The Need for Better-Defined Limits on Government Fees for Use of the Public Right-of-Way Under Section 253 of the Telecommunications Act of 1996
By Thomas W. Snyder and William Fitzsimmons
This Article addresses the enactment and inconsistent application of Section 253 of Telecommunications Act of 1996 (“FTA”). Most courts initially held that Section 253 imposed strong limitations on local governments seeking to charge fees to telecommunications carriers for use of the public rights-of-way (“PROW”) by generally limiting the fees to management costs. Unfortunately, recent cases allowed local governments broad latitude in charging PROW fees to generate revenue, even where the fees are used to subsidize other government services. These “revenue-generating” fees are dangerous to the development of competition and the deployment of Internet services, which were the two primary goals of the FTA. Because these revenue-generating fees generally only apply to carriers with primary relationships with local governments, they do not impact many wireless carriers, Voice over Internet Protocol providers, or carriers leasing PROW occupancy from the incumbents. This creates an unlevel playing field among competitors, which is dangerous in the increasingly commoditized market of communications. Further, the fees act as an obstacle to network expansion and deployment. On April 7, 2011, the FCC issued a Notice of Inquiry (“NOI”) specifically focused on PROW regulation reform. This Article calls on the FCC to use the NOI to restore Section 253 to its original intent. This Article specifically requests that the FCC makes clear that Section 253 limits PROW fees to recovery of the government’s management costs plus a fair market “value” that is calculated by determining what the government could collect for the PROW assuming competitive market conditions.

Notes

The “Strong Medicine” of the Overbreadth Doctrine: When Statutory Exceptions Are No More than a Placebo
By Christopher A. Pierce
In United States v. Stevens, the United States Supreme Court invalidated a federal statute criminalizing the interstate sale and distribution of depictions of animal cruelty on First Amendment grounds. While Stevens demonstrates the Court’s reluctance to create a new category of speech outside of First Amendment protection, Stevens also stands for the proposition that borrowing the exceptions clause from the Court’s obscenity standard will not adequately protect a statute from invalidation as overbroad. This Note discusses the use of the obscenity standard’s exceptions clause in nonobscenity statutes and the Court’s treatment of the exceptions clause in Stevens. This Note concludes that precise exceptions clauses still serve the important function of protecting statutes from invalidation as unconstitutionally overbroad.

Statewide Cable Franchising: Expand Nationwide or Cut the Cord?
By James G. Parker
In the name of increasing competition in the cable television market, Congress passed the Telecommunications Act of 1996. While this eliminated the barriers to entry using federal law, it did not change the nature of municipality-based cable system monopolies. In an effort to expand competition more quickly and efficiently, the phone companies (Verizon and AT&T) successfully supported legislation in at least twenty-five states that permits a single state application to compete statewide. This Note explores the varying approaches taken in the laws passed to date, analyzes the outcomes flowing from those implemented plans, and provides recommendations of the best practices for states considering a revision to an existing law or the passage of a new statewide cable franchise bill.

Are You Ready for Some Football?: How Antitrust Laws Can Be Used to Break Up DirecTV’s Exclusive Right to Telecast NFL’s Sunday Ticket Package
By Ariel Y. Bublick
There is almost no question that football has become modern America’s pastime. Football has never been more popular, and every Sunday people are clamoring to watch as many games as possible. The Sunday Ticket package allows viewers to watch any National Football League (“NFL”) game being played at any given time. However, the NFL has only granted DirecTV the right to air the Sunday Ticket package, denying this excellent service to a majority of television viewers. By limiting the reach of the Sunday Ticket package, the NFL may be in violation of antitrust laws. This Note begins by explaining antitrust laws, and then moves on to discussing the history of professional football and its complicated relationship with television. Finally, the Note argues that several aspects of NFL’s agreement with DirecTV violate antitrust laws, and that making the Sunday Ticket package more widely available would benefit consumers.