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Communications Law and Policy
Wayne State University Law School
Perzanowski, Aaron

Communication Law
Perzanowski
Fall 2011
 
NOTES 8-30
 
·         Power
 – architecture, market, law and norm
·         Entry (structure regulation)
 – how we get the entry? Which contents?
·         Pricing (structure regulation)
– charge tax.
·         Bad Content (contents regulation)
– how can we regulate?
·         Good Content (contents regulation)
 – educational program
·         Consolidation
– Trend: consolidate a couple of broadcast. ßwhat do we need to rule for consolidation?
·         Access
– Coaxial cable to home.
– phone cable – need to share with other provider, but the rule has been changed.
– some company provide their service through their competitor infrastructure. (ex. Comcast phone service v. skype (using internet cable through Comcast) – Comcast can adjust the speed for connecting to skype).
·         Classification
 
Paper – ego analysis.
Should contain some legal analysis, but technological things..
Cable Company à failure reason.
 
 
NOTES 9-6
 
Legal Power
   Congress –  amendments; for drafting, not primary. Maybe lobbyist
   Federal Communication Commission (FCC) – communication act was created.      
                     Drafting is main role, but nobody is happy about outcome from FCC. It
                     means that some party sues FCC.
   Courts – solve the issue between FCC and parties.
 
States
   Public Utilities Commissions – dealing with telephone and cables. Between state
                     regulatory and FCC.
 
Global Structures
   International Telecommunications Union – beyond US à solve some issues internationally.
 
·         Congress
o   1910 – regulated inter-state telecommunication commission.
o   1927 – Radio Act
o   1934 – communication Act
§  During 60 years, nothing is happened.
o   1996 – wireless telecommunication – big statutory act. Kinds of amendment act. Why do we need? à because internet is happened.
§  But reality, does not come about internet regulation
§  Communication ACT
·         Title I – General provisions
o   Tells about goals about FCC
·         Title II – Common Carriers (telephony)
o   Limited to telephone provider – they provide their services with fair fee to everybody without discrimination.
o   Before adding or deleting their line, need to get FCC’s permission.
·         Title III – Radio (and over the air TV)
o   Deals with broadcasting over the air. Need to get permission from FCC. (for using electromagnetic spectrum).
o   Wireless communication
·         Title VI – Cable
o   Talking about Cable company.
o   Public interest; education; government.
o   Talking about Cable Franchise company.
o   Ask FCC to figure out in details.
§  What did the congress drive this act?
·         Wireless phone was popular at that time…
·         Cable problems (HBO, etc).
·         For preventing some antitrust, etc. by Cable company.
·         FCC (agency)
o   Commissioner has some political connection.
o   Also, they go back and forth between FCC and Industry. That’s why everybody has a skeptism.
o   FCC function:
§  Adjudication – Quasi-judicial process resolving a particular case or controversy that implicates a particular party.
·         Occasionally used. Not very often.
§  Rulemaking – Quasi-legislative process to create rules that apply to all parties in all relevant instances.
·         This is main role.
o   Rule making process (p. 55 – see chart and lecture note) – how and why?
§  Mandatory or Optional.
§  Political pressure or Public pressure
§  NPRM – Notice of Proposed Rule Making: States a problem or issue.
§  NOI – Notice of Inquiry: FCC does not know about this issue.
§  2 phase comments from Public – initial comment and after publishing regulation, review comment.
§  FCC refused to make a rule. Then goes to Court.
·         Courts
o   Appeals of FCC Orders
§  § 402(b) Notice of appeal
·         Broadcasting licensing – section 271 decision à D.C. Circuit
§  § 402(a) Petition for review
·         All other agency decisions à Any Circuit, but often MDL (multi district litigation collected to one circuit).

than old time (1910).
 
Miami Herald v. Tornillo
Is the same rule applying to newspaper?
Very limited people can enter newspaper business. That’s why it is not applied by scarcity. State of Florida’s argument.
 
Huge difference outcome?
Newspaper has a free to choose the editorial control. Anything can put something on the front page. Depends on their editorial opinion. How about Red Lion?
They are big structure difference industry.
Scarcity – compared to newspaper, the scarcity is existed.
 
2. Telephony
 
Telephone network (P. 108)
 
NW Telephone Exchange Co. v. City of St. Charles (1907)
If you run your phone business, need to ask the permission from the local city and town. ß it was the rule in Minnesota.
Question of the Case:
City owns their land, therefore need to get the permission from the City.
So City can regulate for using City’s land for wiring for Telephone service.
Telephone company doesn’t have any voice.
 
Rationale for regulating telephony entry?
Access to public property – lots of local government regulation for telephony and cable business.
Other Possibilities?
common carriers
Viewed as providing services for the public benefit
   So owe special obligations, most importantly:
Must serve entire community without discrimination and with a minimum level of care
But as a result: not liable for contents they carried.
Under Communication Act, must interconnect with other carriers.
 
Natural Monopoly
Characterized by:
   Economics of scale
   High fixed up-front costs
   Network effects
 
Potential responses:
   Create legal monopoly
   Require interconnection
   Dismantle