Volume 72; 2019-2020 • Issue 2

Volume 72.2 Full Issue

Welcome to the second and final Issue of Volume 72 of the Federal Communications Law Journal, the nation’s premier communications law journal and the official journal of the Federal Communications Bar Association.

This Issue showcases student-scholar writing spanning telehealth, intermediary liability, and political broadcast advertising to antitrust issues-criminal enforcement and merger review. This Issue also features our Annual Review, presenting case briefs from our incoming board members that focus on critical legal issues in the communications field during the past year.

In the first Note, Margaret McAlpin considers potential implications of the Federal Communications Commission’s repeal of network neutrality rules on the delivery of telehealth services. In the second Note, Camille Bachrach advocates for a carve out for Section 230 to shield victims of online fraud and impersonation and proposes permitting injunctive relief in these situations. In the third Note, Kyle Gutierrez calls attention to the regulatory discrepancy that exists between cable programming and the broadcast and proposes an extension of Section 312(a)(7)’s reasonable access rules. In the fourth Note, Tawanna Lee offers an analysis of the 2010 High-Tech cases to suggest that the Justice Department’s shift in its criminal enforcement strategy is premature and unlikely to deliver its intended aim. In the final Note, Audrey Greene proposes streamlining the merger review process related to the transfer of telecommunications licenses.

Finally, in March 2020, in light of the COVID-19 pandemic, the Journal postponed its 3rd Annual Spring Symposium, Untethered-Politics and Speech on the Internet. Certainly, few topics have proved more controversial or timely. The Journal is committed to continuing our conversation in print format. We are seeking articles for its Symposium issue to be published in the fall. We invite article submission exploring legislative and regulatory perspectives addressing industry self-regulation, consumer protection or election integrity issues, and existing state or proposed federal legislation. Manuscripts should be directed to fcljsymposium@law.gwu.edu.

The editorial board is appreciative of the George Washington University Law School and the Federal Communications Bar Association for their unwavering support throughout the year.

Volume 72 marks a pivotal point in scholarly writing for the Federal Communications Law Journal as the Federal Communications Bar Association transitions its subscription model to allow its members to opt-in to receiving a print issue. The Journal remains steadfast in providing its readership with substantive coverage of relevant topics in communications law, and we appreciate the continued support of contributors and readers alike. We encourage FCBA members to opt-in to print delivery. This Issue and our archive are available at http://www.fclj.org.

The Journal welcomes your feedback and submissions-any questions or comments about this Issue or future Issues may be directed to fclj@law.gwu.edu, and any submissions for publication consideration may be directed to fcljarticles@law.gwu.edu.

Tawanna Lee

Editor-in-Chief

Notes

The Case for a Safe Harbor Provision of CDA 230 That Allows for Injunctive Relief for Victims of Fake Profiles
By Camille Bachrach

Section 230 of the Communications Decency Act has protected interactive computer services from certain kinds of civil liability since 1996. The Act provides immunity by shielding a provider from liability for third party content that is posted on their site. A wide variety of services have successfully used the Act to immunize themselves against various types of claims ranging from defamation and negligence to breach of contract. Recently, the Second Circuit ruled on a case that sheds light on the lengths the Act can go to immunize computer service providers-recognizing immunity even in the face of fraud and impersonation. The case, Herrick v. Grindr, dealt with Herrick’s ex- boyfriend creating multiple fake profiles purporting to be Herrick on a popular gay dating app, Grindr. The app attracted thousands of men to show up, unannounced, to Herrick’s house and workplace to have sex with Herrick. Herrick filed multiple complaints with Grindr to remove the profiles, but Grindr had successfully claimed immunity under the Act and as a result, was not being compelled to remove the fake profiles. Herrick was left with no available recourse, as the Act protects Grindr from any court order that would compel them to actively monitor and delete the fake profiles. This Note proposes an exception to the availability of the Act’s immunity and argues that the immunity available under the Act should not apply in instances of fraud and impersonation once the plaintiff meets a certain burden. To meet this burden, a plaintiff must satisfy four elements under a reasonableness standard, and if successful, can prevent an interactive computer service, like Grindr, from claiming immunity, thus making injunctive relief a legal option. This Note will also cover the importance of allowing for injunctive relief in these situations, while providing a history of the Act and cases affected by it, as an important backdrop to the proposal.

What’s the FCC Got to Do With It?: How the FCC’s Repeal of Net Neutrality Affects Telehealth, Contributing to Inequities and Disparities
By Margaret McAlpin

In today’s digital age, technology is part of virtually every American’s life. Technology has also changed the understanding and delivery of health care through telehealth. Telehealth is becoming increasingly important not only to improve health care quality and reduce the cost of care but also to provide greater access in the face of a physician shortage. For telehealth to continue to thrive unencumbered, providers need to have reliable and affordable access to broadband. This Note evaluates the implications of the repeal of network neutrality (“net neutrality”) by the FCC in 2017. After the repeal of net neutrality, Internet service providers are no longer restricted by no blocking and no throttling rules and are able to offer paid prioritization services. This Note specifically studies the harmful effects that paid prioritization will have on the further development of telehealth. In particular, this Note will evaluate the ability of individuals, who develop applications or other products for telehealth services, to pay ISPs for prioritization of their content, thus affecting competition in the field. This Note will also evaluate the ability of large health care systems and providers to pay for prioritization of their telehealth content compared to smaller systems and providers and the resulting effects. The resulting implications of these effects will be explored.

Too Much, Too Soon: The High-Tech Cases Reveal Criminal Antitrust Enforcement Inappropriate for No-Poach and Wage Fixing
By Tawanna Lee

The technology sector has landed in the sights of antitrust crosshairs as regulators seek to limit the expanding influence of large technology companies. No-poach and wage-fixing agreements, in particular, have gained renewed federal and state government scrutiny for their potential anticompetitive impact on the economy. In late 2016, the Antitrust Division of the Department of Justice announced its intention to criminally prosecute “naked” no-poach and wage-fixing agreements. This Note argues that the Antitrust Division’s impromptu shift in its enforcement strategy regarding no- poach and wage-fixing agreements as criminal violations is antithetical to established antitrust jurisprudence. Moreover, the DOJ’s approach raises questions of fundamental fairness when it expands the reach of its criminal enforcement program where there has been no judicial review. The DOJ’s classification of no-poach and wage-fixing agreements as per se offenses under the Sherman Act stands as a clear appropriation of the authority consigned to the judicial and legislative branches. Critically, this Note demonstrates that there is uncertainty whether the criminal enforcement priority will have the desired outcome and offers a study of the 2010 High-Tech and related cases, which suggest that legislative policy is more apt to address competition within the labor market.

Reasonable Access, Made More Reasonable: An Argument for Extending the Reasonable Access Rule to Cable Programming
By Kyle Gutierrez

Section 312(a)(7) of the Communications Act requires broadcasters to make reasonable amounts of air time available for purchase by legally qualified candidates for federal office. However, this provision, known as the reasonable access rule, does not extend to cable operators. This Note demonstrates that this regulatory discrepancy can be remedied-and that doing so would arguably effectuate the goals that Congress set out to accomplish in the first place-because Congress could constitutionally amend the Communications Act to establish a parallel right of reasonable access for candidates seeking to buy advertising time from cable operators. While the validity of this exertion of control over cable operators’ speech under the First Amendment would no-doubt be challenged, a cable equivalent to the reasonable access rule could very well survive strict scrutiny. Ultimately, this is because such a rule would further the government’s compelling interest in maximizing candidates’ ability to spread their messages and voters’ ability to receive those messages, and would be the least restrictive means by which to effectively achieve this interest.

Merger Review at the North Pole: The Problems of Dual Review in Telecommunications Mergers and a Proposal for FCC Leadership
By Audrey Greene

Both the FCC and the DOJ have authority to review mergers involving the transfer of telecommunications licenses. This dual review process delays deal timelines, creates uncertainty for merger applicants, and wastes valuable government resources. In response, scholars have suggested that the DOJ obtain sole authority over telecommunications mergers. By contrast, this Note argues that the FCC is better-suited to lead the process for four reasons. First, the FCC’s “public interest” standard is broader in scope than the DOJ’s antitrust analysis. Second, the FCC has valuable expertise in the telecommunications industry. Third, the FCC’s review process is more transparent than that of the DOJ. Fourth, as an independent agency, the FCC is more insulated from political pressure. These inherent advantages, coupled with common-sense reforms to the FCC’s current review process, eliminate the need for DOJ review of telecommunications mergers.

Communications Law: Annual Review

ENIGMA SOFTWARE GROUP USA, LLC V. MALWAREBYTES, INC
By Allie Pisula

FRANK V. GAOS
By Joseph Kunnirickal

MOZILLA CORP. V. FCC
By Christopher Frascella

PATEL V. FACEBOOK, INC
By Shuyu Wang

PROMETHEUS RADIO PROJECT V. FCC (PROMETHEUS IV)
By Andrew Magloughlin

ROSENBACH V. SIX FLAGS ENTERTAINMENT CORP
By Julia Swafford

IN RE ZAPPOS.COM, INC
By Katrina Jackson