Welcome to the third Issue of Volume 71 of the Federal Communications Law Journal (“Journal”) the official journal of the Federal Communications Bar Association (FCBA). The summer of 2019 signals a leadership transition for the Journal, as the Class of 2019 members have graduated from The George Washington University Law School. The Volume 72 board and staff have embraced their new roles, working with the outgoing board to produce the final piece of Volume 71. This Issue contains topics spanning from rethinking longstanding media ownership regulations to legalizing web scraping. For our Annual Review Issue, we are excited to present case briefs from our incoming board members that focus on paramount legal disputes in the communications field during the past year.
We are thrilled to feature a practitioner article penned by Christopher Terry, an assistant professor of media law in the Hubbard School of Journalism and Mass Communication at the University of Minnesota. Professor Terry’s piece, Localism as a Solution to Market Failure: Helping the FCC Comply with the Telecommunications Act, argues for a regulatory shift away from relying on pure market competition as a proxy for enabling localism in media. Specifically, Professor Terry explores the historical shortcomings of the FCC’s contemporary approach to safeguarding localism, culminating with the November 2017 Report and Order. His solution adopts Internet-based systems of community ascertainment and requires broadcasts of at least three hours of locally-produced programming each week to combat a growing threat to media localism.
Finally, the Journal is proud to publish the final three student Notes of Volume 71. In the first Note, Abigail Becnel advocates repealing both the Cuban Democracy Act and the Cuban Liberty and Democratic Solidarity Act to make Cuba the newest economic hotspot for telecommunications providers. The second Note is penned by Ayesha Syed, and addresses the mounting issue of copyright infringement in the social media realm, arguing that registration requirements under the Copyright Act should be relaxed to facilitate access to judicial protections for content creators. The final Note is authored by Tess Macapinlac who argues for an amendment to the Computer Fraud and Abuse Act to make web scraping of publicly available information legal.
The outgoing members of Volume 71 would like to thank both The George Washington University Law School and the FCBA for the help and support provided provided throughout the past year. We were honored and humbled to have had the opportunity to provide quality content throughout the year to an esteemed group of professionals in the communications field and beyond.
We welcome your feedback or questions to firstname.lastname@example.org and we ask that article submissions be sent to email@example.com. The Annual Review issue and our archive will be available at www.fclj.org.
Localism as a Solution to Market Failure: Helping the FCC Comply with the Telecommunications Act
by Christopher Terry
The FCC’s media ownership policy has become a legal quagmine. In an effort to promote three often mutually exclusive policy goals, competition, localism, and diversity simultaneously, the FCC has struggled to implement a coherent policy. In place of trying to achieve all three, the FCC currently relies on competition as a proxy for diversity in a conceptual approach that lacks both a consistently logical application and meaningful empirical support. Meanwhile, localism, the third objective, has been undermined by ownership consolidation and the application of economy of scale. Required by the Telecommunications Act to review media ownership regulations every four years, the FCC has moved through a series of reviews and rule changes, only to be blocked by a panel of the 3rd Circuit in a series of cases led by the Prometheus Radio Project. As the FCC tries to answer a series of previously remanded rule changes and launches its mandated 2018 Quadrennial Review, this Article proposes that in order to break the stalemate, the FCC needs to shift its focus away from an unsupportable application of the competition and diversity relationship in order to use localism as the functional metric for media ownership policy. After tracing the history of localism in FCC ownership policy, the Article explores the failed application of the three-objective approach to media ownership before proposing that a renewed focus on localism is a solution to market failure that will increase competition and diversity and ultimately provide a path out of the current legal maze.
Telecommunications in Cuba: Repeal of the Cuban Democracy Act and the Cuban Liberty and Democratic Solidarity Act
by Abigail Becnel
For over 50 years, Cuba, which is only 90 miles off the coast of Florida, was off limits to Americans wanting to do business with the island or travel there for pleasure. However, United States-Cuban policy has changed significantly in the last four years because of restored diplomatic relations, which took effect under the Obama Administration. Changes also occurred in the telecommunications sector when the FCC removed Cuba from its Exclusion List. President Trump’s administration rolled back some of the U.S.-Cuban policy changes made under Obama’s presidency, but the Trump Administration has made similar policies to that of President Obama in regard to Internet access for the Cuban people.
The Cuban Democracy Act of 1992 and the Cuban Liberty and Democratic Solidarity Act of 1996 codified the United States embargo on Cuba and prohibited trade and business with the island nation. Despite the removal of Cuba from the FCC’s Exclusion List, as long as the Cuban Democracy Act and Cuban Liberty and Democratic Solidarity Act are still in effect, telecommunications providers risk violating federal law if they set up telecommunications facilities in Cuba. These acts have not been successful and have never accomplished what they set out to do, which was to establish democracy in Cuba. These unsuccessful acts should be repealed or at least partially repealed in an effort to establish democracy in Cuba through engagement and to allow American telecommunications companies to do business with Cuba legally. Eager telecommunications providers should wait for Congress to act before setting up telecommunications facilities in Cuba rather than violating federal laws.
Making Protection Against Copyright Infringement More Accessible in the Social Media Era
by Ayesha Syed
This Note provides a potential solution to the issue many copyright owners face as a result of posting their work on social media and falling victim to copyright infringement without having access to adequate mechanisms to enforce their copyright protection rights or to obtain relief. Although this Note is intended to apply to social media in general, to some extent, its focus is on Twitter. However, the proposal presented here is applicable to other social media platforms as well, given they are similar to Twitter. This Note first lays out the basic workings of Twitter followed by examples that illustrate how creators on Twitter are being harmed and infringed upon. Next, the Note examines the factual and legal background surrounding the copyrightability of works posted on Twitter as well as the current remedies available to copyright owners who have suffered copyright infringement. Finally, it proposes a reform of the Copyright Act of 1976 regarding its requirement that registration be established before a copyright owner can bring a copyright infringement lawsuit and the fact that copyright owners cannot recover statutory damages or costs and attorney’s fees without registration. The reform involves taking a new look at registration and allowing the actual Twitter post (“tweet”) or other social media post to serve as registration in circumstances where the information provided by these posts is sufficient. The Note ends with policy considerations that look at why such a reform would be beneficial to copyright owners on social media and in general.
The Legality of Web Scraping: A Proposal
by Tess Macapinlac
The Computer Fraud and Abuse Act is often considered the hacking law but does the CFAA exclusively cover hacking, or have the rises in technology and the ambiguous terms in the law allowed it to extend past its original intentions?
Web scraping public pages refers to the copying and saving of information from other publicly available websites, which is often synthesized for another company’s business purposes. Multiple companies have been successfully sued under the CFAA for scraping, on the basis that this access is “without authorization.” But can an entity not have the authorization to access a website that is available to the public? Is such an act worthy of federal charges? This note proposes that scraping should not be considered under the jurisdiction of the CFAA and lays out legislation that would amend the CFAA to render the web scraping of public pages not punishable under the CFAA.