Volume 74.2 Full Issue

Welcome to the second Issue of Volume 74 of the Federal Communications Law Journal, the nation’s premier communications law journal and the official journal of the Federal Communications Bar Association (FCBA).

In this Issue of the Journal, we present a combination of practitioner Articles and student Notes. This Issue provides analysis and insight on policy issues facing the communications field today, including proposals to regulate ISPs, data privacy, and how section 230 reform might be achieved, in addition to many others. We are excited to feature two practitioner Articles in this Issue, including an Article from University of Michigan Law School Lecturer Daniel T. Deacon and an Article co-written by Christopher Terry and Caitlin Ring Carson.

In the first Article, Deacon commemorates the twenty-fifth anniversary for the Telecommunications Act of 1996 with an analysis of various proposals for internet service provider (ISP) regulation. Deacon highlights the inadequacies of several recently-proposed frameworks for regulating ISPs, including the Save the Internet Act and state-level regulations. He advocates that Congress adopt a framework that mirrors commercial mobile radio services (CMRS) legislation passed in the advent of cellular voice service technology. Deacon asserts that this solution shows the most promise because it would resolve ISPs’ classification under Article II of the Communications Act of 1934 and in turn give the FCC flexibility to focus on policy, rather than definitional, questions about ISPs.

In the second Article, Terry and Ring address the lack of diversity in gender and race in broadcast media ownership and the need for FCC to take appropriate regulatory action. Unlike the 1990 Supreme Court’s decision in Adarand Contractors, Inc. v. Pena, which held that any regulations regarding preferential treatment based on race be subject to strict scrutiny review, the authors assert that such regulations should be subject to the less-stringent rational basis review. The authors argue that had the Supreme Court focused on broadcast media ownership in FCC v. Prometheus Radio (2021), it would have similarly reached the conclusion that rational basis review was the appropriate standard of review for regulatory decisions.

This Issue also features three student Notes written by FCLJ members. The first Note, written by Tyler Dillon, takes stock of current proposals for section 230 reform. Dillon acknowledges the importance of preserving the competitive and free market enabled by section 230 as it stands today and thus proposes a solution that would restrict section 230 immunity be limited to high-revenue companies that operate popularly-used social media platforms.

In the second Note, author Michael DeJesus examines whether the expansion of state-level consumer data privacy regulations survive inquiry under the dormant commerce clause. DeJesus focuses his analysis on the California Consumer Privacy Act and the Constitutional implications should other states adopt comparable consumer data privacy frameworks.

The third Note, James Elustondo identifies a significant circuit split on section 2510(17)(B) of the Stored Communications Act and argues that the Fourth Circuit’s broad interpretation of the law in Hately v. Watts should be adopted. Elustondo cautions that a narrow reading, as advanced by the Eighth Circuit would leave consumers little recourse for hacked emails. Elustondo argues that multiple canons of construction and policy considerations support a broad interpretation of the law.

The Editorial Board would like to thank the FCBA and The George Washington University Law School for their support of the Journal. Furthermore, the Board would like to thank all the authors and editors who contributed to this Issue.

The Journal is committed to providing its readership with scholarly analysis and thought leadership on topics relevant to communications and information technology law and related policy issues. The Journal thus welcomes any submissions for publication, which may be directed to fcljarticles@law.gwu.edu for consideration. Any further questions or comments may be directed to fclj@law.gwu.edu. This Issue and our archives are available at http://www.fclj.org.

Merrill Weber
Editor-in-Chief

Articles

Institutional Considerations for the Regulation of Internet Service Providers

By Daniel T. Deacon

Written to commemorate the twenty-fifth anniversary of the Telecommunications Act of 1996, this Essay looks forward at possible settlements regarding the nagging question of whether and how best to regulate Internet service providers. Rather than start from the standpoint that this or that policy, such as net neutrality, is good or bad, I ask more broadly who should regulate ISPs and under what general framework. I assess and critique various frameworks, including reliance on markets and antitrust; state-level regulation under a federal Title I regime; various frameworks set forward in Republican sponsored bills; and the Save the Internet Act. I argue that all of these frameworks suffer from numerous drawbacks, such as the lack of the ability to set clear rules (as with antitrust) or insufficient flexibility (as I argue besets both Republican and Democratic-sponsored bills, in differing ways). I suggest that the legislative proposal with the most promise would be roughly based on the legislation enacted to govern the regulation of CMRS in the early 1990s. This would bring ISPs within the general Title II framework while perhaps taking certain things–such as ex ante price regulation and many forms of state-level regulation–off the table. It would also preserve the FCC’s flexible role going forward, and re-channel the FCC’s inquiry toward the policy-focused forbearance factors and away from endless scholastic debate about whether ISPs really “are” telecommunications carriers.

Rethinking Adarand After Prometheus: A Rational (Basis) Solution to FCC Minority Ownership Policy

By Christopher Terry and Caitlin Ring Carlson

For the last several decades, the FCC has been in a stalemate with media activist organizations about the lack of diversity in broadcast media ownership. Women own less than 10% of broadcast television and AM/FM radio stations, and racial minorities own less than 6%. We argue that this inequity is due to the Commission’s misperception that policies that put stations in the hands of historically underrepresented groups must pass strict scrutiny. In 1990, the Supreme Court ruled in Adarand Contractors, Inc. v. Pena that any laws or regulations that showed preferential treatment to people based solely on their race would subsequently need to withstand strict scrutiny. This prompted the FCC to avoid embedding race (or gender) based preferences into media ownership regulations, despite repeated instructions from the Third Circuit Court of appeals to address the racial and gender imbalance in broadcast ownership. In FCC v. Prometheus Radio (2021), the Supreme Court had an opportunity to address the question of whether strict scrutiny was an appropriate level of review for broadcast regulatory decisions. Rather than tackling the issue of ownership head-on, the Court concentrated its decision on how much discretion administrative agencies have regarding changes to their initiatives. Had the Court focused exclusively on the ownership question, we believe it would have come to the same conclusion that we do here: a rational basis of review should be used for regulatory decisions. We believe this shift is needed to break the nearly two decades-long legal, policy, and regulatory deadlock over media ownership policy.

Notes

Leash the Big Dogs, Let the Small Dogs Roam Free: Preserve Section 230 for Smaller Platforms

By Tyler Dillon

There are numerous proposals to reform section 230, the provision of the US code that immunizes interactive computer services from most civil and criminal liability for content created by third parties, and which is partly responsible for the dominance of the United States in the global Internet economy. While these reforms vary in terms of the variables that would trigger removing section 230 immunity, almost all of them seek to restrict the power that large online platforms would have on public discourse. This article argues that in order to preserve the competitive and free market purposes of section 230 and the consequential economic benefits, while still accomplishing the primary purposes of section 230 reformers, any changes that restrict immunity should be limited to companies with over $500 million in annual revenue that operate social media platforms with over fifty million monthly active users.

Stitching a Privacy Patchwork Together–for Now: The Constitutionality of State Privacy Regulations Under the Dormant Commerce Clause

By Michael DeJesus

With the recent turn towards skepticism of Big Tech, policymakers have rushed to implement regulations safeguarding consumer data privacy. Because of a failure to pass comprehensive federal policy, the majority of regulation in this area has occurred on the state level. In this paper, I consider whether expansive state-level consumer data privacy survives an inquiry under the dormant commerce clause. I primarily examine the CCPA as amended by the CPRA because these are the most expansive U.S. consumer data privacy statues at the state-level, but I also consider implications more broadly for other state regulatory frameworks.

The Stored Communications Act and the Fourth Circuit: Resolving the Section 2510(17)(B) Circuit Split in Hately v. Watts

By James Elustondo

A substantial circuit split has formed as to whether section 2510(17)(B) of the Stored Communications Act should be read broadly or narrowly, with the protection of opened or previously read emails in inboxes under the law hanging in the balance. This Note argues that courts around the country should adopt the Fourth Circuit’s broad interpretation of the relevnt statutory language in Hately v. Watts. The decision offers compelling arguments regarding the law’s legislative history, the plain meaning of the relevant language, the absurdity doctrine, the superfluity doctrine, and the developments in technology since the law was passed in 1986. This paper will also offer independent policy considerations in favor of the broad interpretation of the statutory language, including judicial efficiency, litigation costs, making Americans feel more secure in their personal data, and providing additional opportunities for victims to hold wrongdoers accountable under the law’s private right of action. Lastly, this Note will offer some possible solutions for the current circuit split separate and apart from advocacy for the widespread adoption of the Fourth Circuit’s interpretation.