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Volume 76; 2023-2024 • Issue 3

Volume 76.3 Full Issue


          The Federal Communications Law Journal is proud to present the third and final Issue of Volume 76. FCLJ is the nation’s premier communications law journal and the official journal of the Federal Communications Bar Association (FCBA). We are excited to present the third Issue of this Volume showcasing the diverse range of issues encompassed by technology and communications law. We are honored to be including a rebuttal to a previous Article we published, highlighting the importance of rigorous debate.

          This Issue begins with an article from Donald B. Verrilli, Jr, a partner at Munger, Tolles & Olson LLP, and Ian Heath Gershengorn, a partner at Jenner & Block LLP. In their Article, the authors warn against potential FCC action to broadband Internet as a Title II telecommunications service and explore the potential ramifications of such action, given the current state of the Supreme Court’s major questions doctrine.

          This Issue then includes a rebuttal by Adam Candeub, professor at Michigan State University’s College of Law, addressing Lawrence Spiwak’s article Regulatory Implications of Turning Internet Platforms into Common Carriers featured in Volume 76, Issue 1. We are honored that our Journal can serve as a platform for the open exchange of ideas and perspectives.

          This Issue also features four student Notes, all of which explore pressing legal topics in the area of technology law.

          First, Tomasso Piccirilli explores the unique nature of data breach class actions and how a judges-as-fiduciaries model could improve outcomes in those cases.

          In our second Note, Winnie Zhong argues for an expanded duty of care for physicians in combatting online medical misinformation.

          In our third Note, Amber Grant proposes a reframing of the Rogers test for a new era of trademark issues, specifically those involving NFTs.

          Fourth, Simon Poser proposes a new test to define when surveillance becomes too widespread, detailed, and targeted such that even limiting deployment to public areas encroaches on an individual’s right to privacy.

          Finally, this Issue concludes with four briefs of cases involving technology and communications law that were granted the writ of certiorari by the Supreme Court for the October 2023 term.

          The Editorial Board of Volume 76 would like to thank the FCBA and The George Washington University Law School for their continued support of the Journal. We also appreciate the hard work of the authors and editors who contributed to this Issue.

          The Federal Communications Law Journal is committed to providing its readers with in-depth coverage of relevant communication law topics. We welcome your feedback and encourage the submission of articles for publication consideration. Please direct any questions or comments about this Issue to Articles can be sent to This Issue and our archive are available at

              Catherine Ryan




Title II “Net Neutrality” Broadband Rules Would Breach Major Questions Doctrine

By Donald B. Verrilli, Jr. & Ian Heath Gershengorn

The subject of net neutrality has bounced from the political arena to the Federal Communications Commission to the courts for more than a decade. And the FCC’s recent effort to enact neutrality regulations grounded in Title II of the Communications Act is unlikely to provide a lasting resolution of the issue. While federal courts once gave substantial “Chevron” deference to regulatory agencies like the FCC administering broad authorities granted by Congress, under the currently ascendant “Major Questions Doctrine,” that deference has been significantly reined in and agencies today may not promulgate rules addressing matters of great economic and political significance unless Congress has provided “clear congressional authorization” for them to do so. There is virtually no doubt the current Court will consider the enactment of net neutrality rules via reclassification of broadband as a Title II telecommunications service a “major question.” Then-Judge Kavanaugh has already stated in a previous case that this proposition is “indisputable,” and “any other conclusion would fail the straight-face test.”  And because nothing in Title II of the Communications Act itself or in any other statute gives the Commission the clear and unambiguous authority to resolve this major question, the Court is almost certain to strike down this latest iteration of net neutrality regulation. As a practical matter, in the Major Questions era, the only path to lasting net neutrality is Congressional legislation providing a clear and stable framework for broadband regulation.


Response to “Regulatory Implications of Turning Internet Platforms into Common Carriers”

By Adam Candeub

Lawrence J. Spiwak’s article Regulatory Implications of Turning Internet Platforms into Common Carriers, published in FCLJ Volume 76, Issue 1, argues that laws imposing common carrier-type viewpoint discrimination on social media regulation, such as Texas’s H.B. 20, are in fact calls for intrusive public utility regulation. This is not the case. Common carrier law is a set of legal rules for industries such as railroads, message and cargo carriers, telegraphs, and telephones that typically require non-discriminatory service and special liability standards. Since the late Middle Ages to this day, courts have enforced these simple common carrier rules in a variety of different contexts, and they can do so with H.B. 20. In contrast, public utility law, with its origins in the late 19th and early 20th centuries is comprehensive, intrusive, and highly technical regulation, typically requiring  rate regulation, government permission to enter and exit the market, quality of service standards as well as and universal service obligations. Common carrier non-discrimination requirements do not implicate, require, or lead to the broader regulation of public utility law.



By Tomasso Piccirilli

Federal class actions are under increasing scrutiny. In the wake of Clapper and Transunion standing requirements have only become more stringent. With that, a key avenue of relief for victims of data breaches is slowly fading. Now, the few data breach class actions that make it to federal courts take on an elevated level of importance. Unfortunately, the agency problems that plague class actions are exacerbated in the data breach context due to increased information costs and judicial skepticism over data breach harms. If Judges wish to improve outcomes for victims of data breaches, then judges must change the way they evaluate data breach class actions and take more active roles as fiduciaries for absent class members. This means adopting more modern understanding of the value of personally identifiable information, prioritizing plaintiff favored settlements, adopting incentive aligning fee award structures, prioritizing the best notice possible, and disfavoring non-monetary relief.


In recent years, with the Internet becoming a popular resource for the public to seek medical information, the spread of medical misinformation has increased substantially. Broad dissemination and consumption of misleading medical information can pose serious risks to public health, and it is particularly alarming to see reports of licensed physicians becoming a common source of medical misinformation who can draw on their professional status to gain inordinate attention. An outstanding issue is how the proliferation of medical misinformation should be regulated and by whom. This Note argues that the state medical boards should assume the responsibility to discipline physicians who disseminate medical misinformation. Recognizing the current constitutional limits on the government’s powers to regulate private citizens’ public speech, this Note proposes to extend the current physician-patient fiduciary relationship beyond the traditional clinical setting and argues that physicians owe a duty of care to the public when they invoke their professional status and voluntarily disseminate medical information on public platforms. State medical boards are authorized to impose disciplinary action against physicians who breach their fiduciary duty of care by failing to perform diligent scientific research or consult other credible sources of information before taking the initiative to share medical information with the public.


“Free” Speech: Reframing the Rogers Test to Adequately Balance Rights in a Rapidly Evolving Digital Era

By Amber Grant

2022 marked the year that courts across the United States began to see claims arise regarding trademark rights in non-fungible tokens (NFTs). In 2023, first-of-their-kind suits of this regard reached trial. Many of these claims will challenge the boundaries of what can be considered artistic expression. As it stands, the Rogers test set forth by the Second Circuit applies to all “expressive works” to protect the usage of another’s trademark under First Amendment free speech principles so long as the work has artistic relevance and does not “explicitly mislead” consumers as to its source. Non-fungible token creators have landed in trademark infringement litigation for the use of established trademarks, and many have asserted that their works should be analyzed as expressive works under the Rogers test; not all courts have agreed. This issue, however, does not rest entirely on the qualification of non-fungible tokens as “expressive works.” The Rogers test is applied inconsistently across federal circuits which leads to inconsistent outcomes in litigation. This Note will address the applicability of the Rogers test to non-fungible tokens in trademark infringement suits, the benefits and drawbacks of the Rogers test, and propose a restructured version of the test that if used consistently across all federal circuits, would balance the interests of artists, brand owners, and consumers in ways that protect both First Amendment protections and artistic innovation.


Living in Private: The Fourth Amendment and Perpetual Electronic Surveillance

By Simon August Poser

The Supreme Court’s Fourth Amendment Jurisprudence has not kept up with the advances in electronic surveillance technology. Since the Court’s fractured and narrow decision in Carpenter v. United States nearly six years ago, the lower courts have been in disarray with how to apply Fourth Amendment precedent to advanced surveillance techniques. This note will address these cases, the doctrinal and practical issues undergirding them, and how the techniques at issue harm the average citizen’s right to privacy in the totality of their movements. Furthermore, this Note will propose a new test based around objectively determinable criteria to determine when mass surveillance techniques become so intrusive that they should require a warrant based upon probable cause to conduct them.


Communications Law: Annual Review

Lindke v. Freed

By Kendra Mills

Missouri v. Biden

By Arjun Singh

NetChoice, L.L.C. v. Paxton

By Luke Posniewski

Garnier v. O’Connor-Ratcliff

By Vaishali Nambiar