Volume 64; 2011-2012 • Issue 2

Table of Contents

Articles

Of Burning Houses and Roasting Pigs: Why Butler v. Michigan Remains a Key Free Speech Victory More than a Half-Century Later
By Clay Calvert
More than fifty years after the U.S. Supreme Court rendered its unanimous decision in Butler v. Michigan, the case remains a pivotal—if unheralded and perhaps underappreciated—victory for freedom of speech. This Article analyzes the Butler principle and demonstrates how courts repeatedly apply it across different media platforms and in a myriad of factually distinct contexts, ranging from prohibitions on the sale of sex toys to bans on beer bottles with offensive labels. The Article initially provides an in-depth look at Butler, drawing on literary scholarship, historical newspaper articles from the time of the case, and other sources. It then illustrates how the U.S. Supreme Court has deployed the Butler principle in more than a half-dozen cases in media ranging from print to telephony to the Internet. Finally, the Article explains the lasting impact of Butler and how it likely will remain important in the foreseeable future as a bulwark against censorial impulses to protect children from sexual content.

Is It Time to Recreate the E-rate Program?
By Lynne Holt and Mary Galligan
The Schools and Libraries program, commonly known as the “E-rate” program, was created by the FCC in 1997, as authorized by the federal Telecommunications Act of 1996. The E-rate program provides eligible schools and libraries with discounts of 20 to 90 percent from the rates charged by providers of telecommunications services, Internet access, and internal network connections. These discounts are paid from the federal Universal Service Fund under the regulatory oversight of the FCC. The FCC has modified certain aspects of the program since its inception but has not modified its highest programmatic funding priorities—support for telecommunications and Internet access. The authors explain why these priorities should be revisited in light of regulatory, technological, and educational changes. They also summarize the criticisms levied against the E-rate program, as currently configured, and they provide several recommendations for restructuring the program.

Assessing Competition in U.S. Wireless Markets: Review of the FCC’s Competition Reports
By Gerald R. Faulhaber, Robert W. Hahn, and Hal J. Singer
The FCC’s 14th and 15th Annual Wireless Competition reports review a wide variety of evidence, both direct (how firms and customers behave) and indirect (industry concentration measures) in making its competitive assessment. The reports are silent on how to interpret this evidence. In contrast, modern antitrust analysis relies far more on direct evidence. In failing to put more weight on the relevant direct market evidence to reach an informed competitive assessment, the 14th and 15th reports invite erroneous conclusions about the state of competition in wireless markets. The authors are concerned that these erroneous conclusions eventually could adversely influence regulatory policy in wireless markets. Before economists came to rely on direct measures of market power, they relied on indirect measures, such as market share in the relevant markets, the Herfindahl-Hirschman Index (“HHI”), and market definitions. The 14th and 15th reports downplayed direct evidence of competition—namely, aggressive pricing behavior, robust entry, and continued long-term reductions in price, all of which strongly support a conclusion of “effective competition.” Instead, the FCC focuses on inferences of market power based on market shares. To test the FCC’s presumed relationship between market structure and prices in the wireless industry, the authors analyzed the TNS Telecoms database of cellular telephone bills. The authors found no statistically significant relationship between a household’s monthly wireless bill and the HHI of the economic area in which the household resides. Thus, market concentration does not appear to have an impact on what the customer actually pays. This finding, along with the fact that wireless prices have declined over time as industry concentration has increased, undermines the structure-conduct hypothesis that undergirds the FCC’s market-share analysis.

Notes

Wiretapping the Internet: The Expansion of the Communications Assistance to Law Enforcement Act to Extend Government Surveillance
By Christa M. Hibbard
Criminal use of the Internet to circumvent traditional government phone wiretaps has inspired the Obama Administration to create a proposal to expand the Communications Assistance to Law Enforcement Act (“CALEA”). CALEA was passed in 1994 to regulate telephone and broadband companies to ensure compliance with standards to enable government wiretapping. The proposed amendment of CALEA would allow the government to require all communications service providers to meet technical standards necessary to comply with a wiretap order. The expansion of CALEA would likely widen its scope to social networking sites, instant messaging, gaming consoles that allow conversation among multiple players, and to word processing software that allows communication through Internet access. The unique architecture of the Internet lends it to particular vulnerabilities with the consequence that an expansion of CALEA to all Internet communications could create problems regarding the innovative nature of the Internet, national security, free speech, and privacy. This Note will examine the competing interests related to expanding CALEA and will weigh the potential benefits and consequences of CALEA. The Note concludes that substantially more information is needed to justify a change of the law.

Survival of the Standard: Today’s Public Interest Requirement in Television Broadcasting and the Return to Regulation
By Drew Simshaw
The notion that broadcasters must broadcast in the public interest has always been a requirement; exactly how this requirement is met has taken many forms. This Note examines the history of the public interest requirement in broadcasting—from vagueness to regulation to good faith and presumptions of compliance—and considers the appropriate direction for the public interest requirement’s future. The deregulation of the 1980s served a valuable purpose at the time by lifting burdens and sparking innovation. It is time to examine those innovative methods of ascertaining the needs of our communities and providing desired programming, in order to determine ways in which we can increase the accountability of individual stations and improve their communication with the public. We find ourselves at a place in history where it is necessary to implement certain sensible regulations in order to ensure the preservation of the public interest standard.

Consumer Watchdog: The FCC’s Proposed Rulemaking to Help Consumers Avoid Bill Shock
By Cameron Robinson
This Note discusses the proposed rulemaking by the FCC in order to empower consumers against “bill shock.” Bill shock is described as what a consumer experiences when he or she receives a bill for his or her cellular phone that is much higher than expected, usually on account of roaming charges. This Note will argue in favor of rulemaking by the FCC and explain how the consumer will be empowered against the confusion of the current system.

From Betamax to YouTube: How Sony Corporation of America v. Universal City Studios, Inc. Could Still Be a Standard for New Technology
By Veronica Corsaro
Internet technological innovations, particularly the development of Peer-to-Peer (“P2P”) networks and the proliferation of user-generated content sites, have introduced considerable challenges for the application of copyright law and infringement liability. The response from the courts and Congress has been mixed, with severe legal curtails being applied to P2P technology while user-generated content sites have been afforded a level of protection against infringement claims as part of the Digital Millennium Copyright Act’s section 512 “safe harbor” provisions. However, these provisions have raised concerns about the issue of secondary copyright liability, a matter that has still been left undefined. This Note will argue that the substantial noninfringing use standard enumerated in the case of Sony Corp. of America v. Universal City Studios, Inc. could provide a guide for developing a standard for secondary liability of user-generated content sites.