Volume 78.1 Issue One 

Welcome to the first Issue of Volume 78 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 excited to present the first Issue of this Volume showcasing the diverse range of issues encompassed by technology and communications law. This Issue provides thoughtful scholarship on topics including the Artificial Intelligence (AI) industry, local broadcast and streaming, and the use of AI and digital media in courtrooms and beyond. 

This Issue begins with an Article from Capt. Bridget Reineking, Special Counsel in Cooley’s Washington, D.C office. Her article analyzes the theory that market concentration in the AI industry resembles an oligopoly and critiques the proposed competition-oriented interventions, arguing instead for more narrowly tailored interventions that promote both competition and innovation. 

   This Issue also features three student Notes, all of which explore innovative ways to apply and expand existing frameworks to novel technology issues.

First, Maggie Deas applies current Fourth Amendment protections to emerging AI-powered surveillance technologies used in policing, considering the technology’s congruence with the reasonable suspicion standard and its admissibility in court. 

In our second Note, David Bamgbowu argues for an amendment to Section 602(13) of the Communications Act of 1934 to protect local broadcasters and programmers by allowing them to directly negotiate with linear streaming services. 

Finally, Alex Greenberg proposes that the Federal Rule of Evidence preventing evidence of past sexual behavior to be used in sexual misconduct trials should extend to sexually explicit digital media, such as photographs. 

            The Editorial Board of Volume 78 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 and technology 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 fclj@law.gwu.edu. Articles can be sent to fcljarticles@law.gwu.edu. This Issue and our archive are available at http://www.fclj.org.

Ella Hillier

Editor-in-Chief

Article

Debunking the Artificial Intelligence Oligopoly Myth: How Disruption and Competition Shape the Modern Foundation Model Market  

  By Bridget Reineking …………………….…..………………….1

In the face of regulatory concerns about market concentration in artificial intelligence (“AI”), this Article challenges the prevailing narrative that the foundation model market represents an emerging oligopoly requiring competition-based interventions. While regulators and scholars have warned of inevitable market concentration driven by data advantages and computational barriers, empirical evidence reveals a different reality: a dynamic ecosystem characterized by frequent market disruptions, international competition, and diverse pathways to model development. Comprehensive analysis of market developments through mid-2025 demonstrates how open-source initiatives, computational efficiency breakthroughs, and alternative data acquisition strategies have democratized AI innovation, creating meaningful competition within the foundation model market despite purported barriers to entry. Accordingly, this Article critiques several proposed competition-oriented interventions—including nondiscrimination mandates, interoperability requirements, and data- sharing obligations—as premature. Such interventions would chill innovation but yield only marginal consumer benefits. Drawing from telecommunications regulatory precedent, this article proposes model output portability and industry-led standards development as narrowly tailored alternative interventions. These alternatives would serve to enhance competition without constraining innovation. In an era of rapid technological advancement, revealing the AI oligopoly “myth” provides instructive guidance for policymakers and other stakeholders navigating the intersection of competition policy and AI governance.

Notes

ShotSpotter Misfires: The Subordination of Fourth Amendment Rights in the Age of Unreliable Technology

By Maggie Deas…………..…………………………………………45

Predictive policing tools have emerged alongside advancements in artificial intelligence, leading to concerns over the protection of Fourth Amendment rights. ShotSpotter, an acoustic gunshot detection technology that triangulates the location of gunfire, has given police officers the ability to stop and frisk someone based on the alert alone. Legal standards, like reasonable suspicion, were created to ensure that law enforcement could not, on a whim, unjustifiably pick someone on the street to stop and frisk. With the rapid increase of artificial intelligence use in law enforcement, courts must strike a balance between the use of the technology and an individual’s Fourth Amendment right to be secure in their person from unreasonable searches and seizures. First, this Note argues that ShotSpotter should not be used alone to establish reasonable suspicion and should be just one factor in assessing reasonable suspicion. Second, ShotSpotter evidence would not be admissible under the Daubert standard. If ShotSpotter evidence is admitted, it should be subject to the limitations that other inaccurate forensic evidence is subjected to. Lastly, this Note discusses community-based solutions for gun violence, advocating for the use of violence interruption groups that only use members of the community to resolve conflict.

Haunted No More: How Congress Can Uncover a New Path to a Fairer Retransmission Consent Regime

By David Bamgbowu…….…………………………………………85

Currently, the Federal Communications Commission (“FCC”) does not interpret linear streaming services, such as YouTube TV and Hulu + Live TV as multichannel video programming distributors (“MVPD”), like traditional cable television providers. This means that certain obligations that apply to MVPDs do not apply to linear streaming television services. For example, The Communications Act of 1934, Section 325’s good faith negotiating requirement does not apply, which allows linear streaming services to negotiate in bad faith or outright refrain from negotiating with broadcast television programmers. The broadcaster’s lack of bargaining power results in them receiving less for their content when it is distributed by cable television thereby receiving less revenue and stifling the growth of broadcast television, especially local broadcasters. This note proposes a two-part solution that will help promote and preserve local broadcast programming by proposing that Congress pass legislation that includes linear television streaming services as MVPDs to ensure fair bargaining of contracts and directs the FCC to create a task force to oversee implementation and effectiveness of this law and to ensure local broadcasters have the resources to negotiate effectively.

The New Age of Victim Shaming: FRE 412 Must be Amended to Protect Victims in the Digital Age 

By Alex Greenberg …………………………………………………107

The Federal Rule of Evidence 412 (“FRE 412”) was enacted to protect survivors in sexual misconduct trials and prevent propensity reasoning. However, the digital age has altered the way we communicate with each other and has moved much communication from in-person to digital mediums. This new reality calls for an amended FRE 412 that specifies that digital evidence of a victim’s past sexual behavior is excluded. This note examines how judicial discretion in admitting digital evidence in sexual misconduct trials has failed to protect survivors in the way the rule was intended. It will also examine the proliferation of digital communication and how FRE 412 and other rape shield laws should be amended to account for this. This note argues that FRE 412 should be amended to define sexual behavior that is either physical or digital in nature and digital evidence of a victim’s past sexual behavior should not be admitted into evidence under the FRE 412(B)(1)(b) exception.