Volume 78.2 Full Issue

Welcome to the second 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 second Issue of this Volume showcasing the diverse range of issues

encompassed by technology and communications law. This Issue provides thoughtful

scholarship on topics including spectrum allocation, FCC rulemaking authority, and

the use of technology in differing sectors, from government to healthcare to the

nonprofit world.

This Issue begins with an Article from T. Randolph Beard, PhD, George S.

Ford, PhD, and Michael Stern, PhD. This Article provides an economic perspective

on issues facing the spectrum allocation landscape, outlining general principles

experts and lawmakers should consider when reallocating commercial radio

spectrum.

This Issue also features four student Notes, all of which provide tailored

analysis and insight into emerging technological, legal, and social trends.

First, Jessica Buchanan recommends non-defense government agencies

leverage the Department of Defense model for procurement of Generative AI

(GenAI) technologies to ensure procurement timelines align with the fast-paced

evolution of GenAI.

In our second Note, Ella Hillier examines organized hate group’s use of

nonprofit status to access online funding and legitimacy, proposing a narrow change

to the review process for hate groups’ nonprofit applications while considering First

Amendment concerns.

Third, Talia Spillerman analyzes privacy concerns related to abortion

information within hospital data networks, arguing for a data segmentation

requirement to protect medical patients’ privacy and unfettered access to healthcare.

Finally, Nicholas Teachenor explores the FCC’s rulemaking authority in

post-Loper Bright era to strengthen the equal time rule by introducing stronger notice

requirements.

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 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.eic@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

How to Allocate New Spectrum Among Alternative Uses

By T. Randolph Beard, PhD, George S. Ford, PhD, Michael Stern, PhD

Deciding how to allocate commercial radio spectrum among a myriad of competing interests is one of the most consequential choices in telecommunications policy, yet these decisions are frequently driven by irrelevant industry advocacy rather than sound economic principles. This paper establishes the economic principles for optimal spectrum allocation among alternative uses, specifically examining the allocation of newlyavailable spectrum among alternative uses. This analysis demonstrates that optimal spectrum allocation depends on marginal value creation across competing uses. Spectrum should be assigned to the service that generates the highest incremental value for each additional unit allocated. For small spectrum increments, allocation decisions are straightforward—assign to the highest-value use. However, when larger amounts of spectrum are involved, the optimal allocation may require balancing multiple services. We also show that when mobile and Wi-Fi services are complementary (as evidenced by Wi-Fi carrying approximately 90% of smartphone traffic), both services should receive portions of any newly-available spectrum rather than allocating this spectrum entirely to one use.

Notes

AI Procurement Reboot: Modern Strategies for Faster, Smarter Solutions

By Jessica Buchanan

The rapid development and deployment of Task-Oriented and Generative Artificial Intelligence technologies has outpaced the traditional procurement processes employed by non-defense government agencies, creating a significant gap between Artificial Intelligence and procurement. This Note proposes a solution to this challenge by suggested non-defense government agencies employ two of the Department of Defense’s expedited acquisition pathways combined with agile and outcome-based procurement strategies, along with specialized Artificial Intelligence procurement teams to efficiently procure both Task-Oriented and Generative Artificial Intelligence systems. The use of these modern procurement strategies will allow non-defense government agencies to streamline decisions, reduce costs, minimize national security risks, and enhance innovation, positioning them to better utilize the potential of Artificial Intelligence systems.

Why Are We Paying For Hate? Refashioning the Methodology Test For “Educational” Nonprofit Hate Groups

By Ella Hillier

501(c)(3) status is a designation offered to charitable, educational, and religious nonprofits. Thousands of organizations apply for this designation because it offers a variety of favorable tax benefits, notably tax exemption on any donations. Currently, hate groups are able to take advantage of nonprofit status by denoting themselves as “educational” on their applications. Educational charities can advocate certain viewpoints, as is done by hate groups, if they meet the standards laid out in a test called “The Methodology Test.” Because many hate groups use misinformation in their communications, they would likely fail the test if applied. The current testing scheme is not effective at preventing hate groups from obtaining 501(c)(3) status because there is no clear time that is triggered. As of now, the trigger is vague because it aims to remain content neutral so it will not violate the First Amendment freedom of speech clause. This Note recommends an updated trigger for the Methodology Test that explicitly calls out the common traits of hate groups to ensure they are subject to the Methodology Test. This content-based trigger will not run afoul of the First Amendment because tax exemption is a form of subsidy, which is not subject to typical First Amendment court scrutiny.

Sharing is not Always Caring: Protecting Reproductive Health Data with a Certified Health IT Segmentation Requirement

By Talia Spillerman

After Dobbs v. Jackson Women’s Health Organization, some states have made it unlawful for patients to travel out of state for an abortion and for clinicians to provide abortion services to these patients. Without patient’s explicit consent, some Electronic Health Records (EHRs) have shared outof- state abortion patients’ health information with their home state clinicians. In turn, patients fear that this data sharing will lead to legal action against them. This inter-state data sharing has caused some patients to never seek an out-of-state reproductive health procedure. The following Note will argue that the Department of Health and Human Services Assistant Secretary of Technology and Policy (ASTP) should require EHR developers to create a data segmentation function to keep patients’ reproductive data private. This proposal will allow out-of-state patients to obtain an abortion with less fear that a clinician in their home state will learn about their procedure. While this proposal will incentivize EHR developers to create segmentation technology, state and federal governments will still need to enact laws to require clinicians to use this segmentation function.

I Can’t Afford the Time: How the FCC Could Conduct Rulemaking in a Post-Loper Bright Era to Strengthen the Equal Time Rule and Democracy in General

By Nicolas Teachenor

Since 1934 the FCC has been the referee for the enforcement of the equal time rule but has traditionally been hesitant to strengthen the rule. The spotlight for the rule is largely on flashy political races such as the Presidency or celebrity candidates, but the current state of the rule leads to an inability for working class candidates to utilize the rule. This note explains how the usage of the word “afford” in the statute can be used alongside the broad regulatory power given to the FCC to justify rule making. The Note recommends that the FCC can use the tools given to them by their mandate in the Communications Act of 1934 to require broadcasting licensees to give notice to opposing candidates who are eligible for equal opportunities under the rule. There has been a body of writing based around the equal time rule, including recommendations to adopt a notification requirement, but none of those explore the viability of creating a notification rule through regulation.