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Volume 65; 2012-2013 • Issue 1

Full Issue

Editor’s Note


Does the Communications Act of 1934 Contain a Hidden Internet Kill Switch?
by David W. Opderbeck

A key area of debate over cybersecurity policy concerns whether the President should have authority to shut down all or part of the Internet in the event of a cyber-emergency or cyber-war. The proposed Cybersecurity Act of 2009, for example, contained what critics derided as an Internet “kill switch.” The current iteration of a comprehensive cybersecurity reform bill, the Cybersecurity Act of 2012, opts for a soft public-private contingency plan model instead of a kill switch. But the kill switch may yet live. Sponsors of the present legislation have argued that section 606 of the Communications Act of 1934 already gives the U.S. President plenary powers over the Internet in times of emergency or war. If this claim is correct, it should be particularly troubling to network neutrality advocates who have argued for expansive FCC jurisdiction over the Internet, since the Executive powers under section 606 are tied to the FCC’s authority over communications policy. This paper evaluates the language, history, and application of section 606, and argues that instead of implicitly relying on the vague and antiquated provisions of a statute crafted long before the Internet was born, cybersecurity reform should include explicit executive emergency powers with clear and appropriate limitations.

Judicial Review of Streamlined Tariff Protest Denials
by Frank W. Krogh

Generally, an FCC order denying a petition to reject or suspend and investigate a tariff is non-final and unreviewable because: (1) such a denial is an interlocutory action involving no determination on the merits; (2) review is not necessary to prevent irreparable injury, given the possibility of refunds or damages; and (3) judicial intervention would invade the province reserved for agency discretion. The Telecommunications Act of 1996, however, upended this regime in the case of “streamlined” tariffs filed by local exchange carriers by adding a new provision to the Communications Act providing that such tariffs “shall be deemed lawful” if they are allowed to take effect without suspension or investigation. The FCC found that this “deemed lawful” status eliminates the retrospective complaint damages remedy conferred by sections 206-07 of the Communications Act. Thus, notwithstanding a finding in a subsequent formal complaint case that a “deemed lawful” streamlined tariff is actually unlawful, no damages can ever be awarded for the resulting injury.

The extraordinary conclusive immunity from damages conferred by the “deemed lawful” status of a streamlined tariff and the resulting irreparable injury to customers and others potentially harmed by such immunity requires that judicial review be available to parties unsuccessfully protesting new streamlined tariffs. Denial of a tariff protest permanently denies the right to damages for the entire period that a streamlined tariff is in effect. Appeal of an FCC denial of a streamlined tariff protest also would not invade the province of the agency, since there will be no FCC proceeding addressing damages resulting from the tariff. Moreover, an FCC denial of a streamlined tariff protest is not committed to the agency’s discretion by law because of the finality and irreparability of such a denial and because the FCC’s tariff suspension rules, which were derived from judicial standards, provide sufficient “law to apply” to enable judicial review. The sole issue on review would be whether the FCC’s determination that the petitioner failed to demonstrate at least one of the predicates for suspension of a tariff is arbitrary and capricious.

Wireless Competition Under Spectrum Exhaust
by T. Randolph Beard, PhD, George S. Ford, PhD, Lawrence J. Spiwak, Esq., Michael Stern, PhD

There is a growing concern that the present inventory of commercial spectrum—an essential input for providers of mobile wireless services—represents just a fraction of the amount necessary to match growing demand for mobile data services. At the same time, there has been mounting anxiety among policymakers about the number of competitors in the mobile wireless industry. What is lacking from the policy debate today is an economic theory of market performance that integrates these two key issues—spectrum exhaust and industry structure. In this Article we provide such a theory, and our findings are significant. The addition of a spectrum constraint to the traditional model of competition turns the conventional view that high industry concentration is a bellwether of poor economic performance on its head. Indeed, under a binding spectrum constraint, a market characterized by few firms (rather than a large number of firms) is more likely to produce lower prices and possibly increase sector investment and employment. Given the FCC’s stated position on spectrum exhaust, the agency needs to re-orientate the way it thinks about spectrum policy. Policies that impede incumbent carriers from acquiring more spectrum—via either auction or acquisition—may do harm rather than good.


A First Amendment Look at the Statutory Ban on Tobacco Advertisements and the Self-Regulation of Alcohol Advertisements
by Hugh Campbell

Since the 1970s, the government has had some form of restrictions on the ability to advertise cigarettes and tobacco-related products using electronic communications. This approach is different from the self-regulatory model used for alcohol advertisements. This note analyzes the history of the Supreme Court’s first amendment doctrine regarding commercial speech to its present day test under Central Hudson Gas & Electric Corp. v. Public Service Commission of New York to determine whether the distinct approaches to dealing with the speech of alcohol versus tobacco companies would be upheld. The note then considers the social and legal history of tobacco and alcohol, as well as the health effects of each and finds that the regulation of these two vices can be distinguished based on the substantial governmental interest prong of the Central Hudson test. It concludes that a complete ban on tobacco advertising in broadcast would be held constitutional due to the severe health effects that can result from any amount of smoking. Because tobacco advertising regulations were enacted by Congress and deal with the broadcast medium, the Court will be more deferential in its First Amendment analysis.