Volume 73; 2020-2021 • Issue 1

Volume 73.1 Full Issue

Welcome to the first Issue of Volume 73 of the Federal Communications Law Journal, the nation’s premier communications law journal and the official journal of the Federal Communications Bar Association (FCBA). We are thrilled to provide timely and thought-provoking pieces in this Volume’s inaugural Issue representing the breadth of telecommunications and informational privacy law. This Issue explores topics including municipal broadband, media ownership, net neutrality and access to the Internet for racial minorities, the Equal Time Rule’s application to political debate, and an antitrust review of data collection practices.

This Issue begins with a deep examination of the legal and economic framework for municipal broadband by T. Randolph Bear, PhD, George S. Ford, PhD, Lawrence J. Spiwak, Esq. and Michael Stern, PhD, all of the Phoenix Center for Advanced Legal & Economic Public Policy Studies. Bear, et al. ultimately caution against municipal broadband efforts because they rarely improve competition or access. Next, Christopher Terry, PhD, Stephen Schmitz, and Eliezer (Lee) Joseph Silberberg, all of the University of Minnesota, examine the history of media ownership regulation since the Telecommunications Act of 1996, including the most recent Prometheus Radio Project case before the U.S. Supreme Court this term. Terry, et al. argue for a set of policies to produce empirical data that would resolve the persistent ownership debate.

This Issue also features three timely student Notes. In the first Note, Katrina Jackson examines the FCC’s repeal of net neutrality and its impact on African Americans’ and Hispanics’ access to the Internet. Jackson argues that the Internet is a place of public accommodation such that Title II of the Civil Rights Act offers recourse against Internet service providers who cable package their service offerings. In the second Note, Sydney Snower explores political debates’ current exemption from the Equal Time Rule, which would otherwise require that candidates receive equal debate time. Snower argues for an exemptions modification that would allow political debate participants equal time under the Rule. In the third Note, Brennan Weiss looks to Germany’s use of antitrust enforcement authority to rein in harmful data collection practices by Facebook. Weiss argues that the U.S. can do the same by challenging large technology companies’ harmful data collection practices as monopolization offenses under the Sherman Act.

As 2020 ends, the Journal asks you to save the date for our joint virtual Spring 2021 Symposium, 25th Anniversary of the Telecommunications Act of 1996—Looking Ahead to the Next Telecommunications Act, co-hosted with the Berkeley Center for Law & Technology on March 12, 2021. We invite abstract submissions no later than January 11, 2021. See www.fclj.org/symposium/ for further details. The 3rd Annual Spring Symposium, Untethered-Politics and Speech on the Internet remains postponed until further notice.

The Editorial Board appreciates the continued support of the FCBA and The George Washington University Law School. The Editorial Board also thanks all authors and editors, including the Volume 72 Editorial Board, for their contributions to this Issue during the COVID-19 pandemic.

The Journal is committed to providing its readership with rigorous academic scholarship and thought leadership in relevant topics in communications and information technology law. The Journal therefore welcomes your feedback and submissions. Please direct questions and comments to fclj@law.gwu.edu and send articles for publication consideration to fcljarticles@law.gwu.edu. This Issue and our archive are available at www.fclj.org.

Elissa C. Jeffers
Editor-in-Chief

Articles

The Law and Economics of Municipal Broadband

By T. Randolph Beard, PhD, George S. Ford, PhD, Lawrence J. Spiwak, Esq., and Michael Stern, PhD

This Article presents a legal and economic framework for analyzing municipal broadband. Economics predicts, and the evidence confirms, that municipal broadband is in almost all scenarios subsidized entry, covering capital costs and losses with tax dollars and other internal transfers. Consequently, municipal broadband is incapable of increasing competition in the long run, is prone to be predatory (i.e., prices below incremental cost), and discourages private sector investment. Many provisions of state law overseeing municipal broadband, especially those discouraging cross subsidy, therefore have a sound economic basis. Empirical studies on municipal broadband confirm the uneconomic nature of municipal entry and suggest the lack of competitive price effects and broader economic rewards. The Article also shows that federal efforts to preempt state laws governing municipal broadband suffer from several Constitutional concerns. Moreover, case law indicates that when government acts as both regulator and competitor, Fifth Amendment due process protections may be violated. In all, the analysis prescribes a heavy dose of caution regarding municipal entry into the communications business.

The Score Is 4-0: FCC Media Ownership Policy, Prometheus Radio Project, and Judicial Review

By Christopher Terry, Stephen Schmitz, and Eliezer (Lee) Joseph Silberberg

Since the passage of the Telecommunications Act of 1996, the FCC’s approach to broadcast ownership limits has been bogged down in a legal and regulatory quagmire. While initially successful in restructuring the broadcast radio industry using structural regulation between 1996-2003, in 2004, the FCC found a significant antagonist in the form of a group of Citizen Petitioners led by the Prometheus Radio Project. The lack of consistent empirical data supporting the agency’s approach doomed three attempts at reforming minority ownership policies. And none of these failed reforms actually would have promoted ownership by minorities or women. After four consecutive FCC losses before the same the Third Circuit Court of Appeals panel, the U.S. Supreme Court will review more than twenty years of FCC media ownership policy in Spring of 2021. This Article traces the timeline for modern media ownership policy, examining in detail the FCC’s actions taken during biennial reviews in 1998, 2000, and 2002; the quadrennial review proceedings in 2006, 2010, 2014, and 2018; and the four court losses to the Citizen Petitioners in 2004, 2011, 2016 and 2019. This Article also explores how the FCC failed to respond to the Third Circuit’s remands during the same time period. The Article concludes with a series of policy solutions for the agency designed to produce the necessary empirical data to break the regulatory deadlock that has stalled changes to media ownership limits since 2004.

Notes

The Repeal of Net Neutrality: Does it Violate Title II of the Civil Rights Act of 1964?

By Katrina Jackson

This Note will explore how the FCC’s recent repeal of net neutrality, which now permits ISPs to engage in discriminatory practices, will have disparate impacts on people of color. Following the FCC’s repeal, the Internet will no longer be a place of cultural sharing and collection, but another social construct disproportionally affecting African Americans’ and Hispanics’ access to the Internet. This Note will establish how ISPs’ discriminatory behavior will violate Title II of the Civil Rights Act of 1964, as this Note will argue that the Internet is a place of public accommodation.

The Equal Time Rule Is Anything But: How Can the Federal Communications Commission Apply the Equal Time Rule to Make Televised Political Debates Fairer and Ensure That Candidates Receive Relatively Equal Speaking Time?

By Sydney Snower

The Equal Time Rule requires broadcast stations and licensees to afford equal opportunity in airtime to all candidates who submit a request. Currently, televised political debates automatically constitute on-the-spot coverage of bona fide news events and are thus categorically exempt from the Equal Time Rule. The categorical exemption for televised political debates gives broadcast stations and licensees considerable autonomy and allows for appreciable differences in the amount of speaking time afforded to participating candidates. This Note suggests that televised political debates no longer be categorically exempted from the Equal Time Rule. Instead, broadcast stations and licensees would satisfy a modified version of the two-pronged test that the FCC currently uses to determine if a televised program is subject to the bona fide news event exemption. The FCC’s inquiry of good faith news judgment and nonpartisanship under the two-pronged test could explicitly consider comparisons in speaking time among debate participants. A finding of significantly disparate speaking times among debate participants would result in a finding of partisanship and retroactively disqualify the broadcast station or licensee from the exemption to the Rule. This policy change would motivate broadcast stations and licensees to afford relatively equal speaking time to all debate participants.

Reframing Antitrust Law for Big Tech: Lessons from the German Bundeskartellamt

By Brennan Weiss

In the absence of federal privacy legislation in the United States, the Federal Trade Commission (FTC) and Department of Justice (DOJ) Antitrust Division do not need to revamp the existing antitrust legal framework to address harmful data collection practices by large technology companies. Rather, the FTC and DOJ should remedy such harms by framing them in traditional monopolization terms (i.e., exclusionary conduct that harms consumers by reducing innovation and the overall quality of products and services). By way of example, this Note will analyze the facts of Germany’s antitrust case against Facebook in the context of Sherman Act Section 2. In February 2019, Germany’s top antitrust enforcement authority, the Bundeskartellamt (FCO), charged Facebook with abusing its dominant position in the marketplace and ordered the company to stop collecting data from sources outside its platform. The FTC or DOJ should bring a similar claim under Sherman Act Section 2. But to be successful, the agency will need to emphasize how Facebook’s data collection practices harm consumers.