Volume 77.1 Full Issue
EDITOR’S NOTE
Welcome to the first Issue of Volume 77 of the Federal Communications Law Journal, the nation’s premier communications law journal and the official journal of the Federal Communications Bar Association (FCBA). Over the course of Volume 77’s publication, we look forward to presenting articles and student Notes that showcase the diverse range of issues in the fields of technology and communications law.
This Issue begins with an article from Connor Haffey, Legal Fellow with For All Moonkind’s Institute for Space Law and Ethics, which analyzes the American commercial space authorization framework and the debate regarding space mission regulation, arguing that the FCC is best equipped to centralize the regulation of commercial space activities.
Next, we have an article by Harvey Reiter, a partner in Stinson LLP’s Washington D.C. office and adjunct professor of law at The George Washington University Law School, discussing the recent implications of Loper Bright on the FCC’s authority to determine common carrier regulation and the breadth of the term “telecommunications service” under the Telecommunications Act of 1996.
This Issue also features three student Notes. First, Addison Spencer explores the potential for states to use the Children’s Internet Protection Act (CIPA) as a backdoor to infringe upon students’ First Amendment rights. To prevent this, Spencer proposes the implementation of an audit that heightens current E-Rate reporting requirements to safeguard access to constitutionally protected speech in schools and libraries.
Second, Andrew Ware discusses the reallocation of spectrum from federal to non-federal uses, arguing that the Commercial Spectrum Enhancement Act of 2004 requires a series of adjustments, if not an entirely new framework, to effectively address a congested spectrum environment and account for innovative developments in spectrum technology.
Third, Luke Posniewski analyzes how heightened privacy standards in the E.U. prevent the harmonious transfer of data to American companies. To solve this, Posniewski proposes the FTC promulgate rules mirroring the E.U.’s Data Privacy Principles to promote stronger consumer privacystandards at home, as well as the transfer of data abroad.
The Editorial Board of Volume 77 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.
Addison Spencer
Editor-in-Chief
Articles
Bridging the U.S. Regulatory Gap: Why the FCC Should Authorize Novel Commercial Space Activities
By Connor Haffey
The United States has a regulatory gap in their licensing and authorization of commercial space missions. Article VI of the Outer Space Treaty—the foundational international tool governing space law—mandates that each State Party to the Treaty must authorize and conduct continuing supervision of their country’s governmental and nongovernmental entities. The United States has one of the world’s most robust commercial space economies, yet its regulatory structure supporting that economy is mere patchwork. The three key regulators authorizing the traditional space activities of communications, launch, and remote sensing are the Federal Communications Commission, Department of Transportation, and Department of Commerce, respectively. As the space economy continues to grow, so does the technological complexity and sophistication of space missions. Since the mid 2010s, a debate has ensued asking how the U.S. regulatory scheme will continue to complete its international law obligations under Article VI while so-called “novel” space missions enter viability. Although the debate is ongoing, recent rulemakings and proposed legislation suggest regulators and policymakers alike recognize a need to fill the gap in the U.S. regulatory framework. This article begins with the background of the U.S.’s current commercial space authorization framework. It then addresses the debate over how to regulate novel space missions by analyzing two recently proposed bills, each vying for a different agency to have authorizing responsibility but ignoring the FCC completely. The crux of the article argues the FCC is already authorizing virtually every commercial space mission in some form and will continue to do so regardless of any legislation passed. Thus, with official responsibility given to the FCC, at least in the near to mid-term, it could centralize mission authorization without putting further burden on the commercial applicant.
The FCC’s Terrible, Horrible, No Good, Very Bad Day
By Harvey Reiter
On May 22, 2024, the FCC ruled that broadband access to the Internet provided by cable and telephone companies was a “telecommunications service” under the 1996 Telecommunications Act and thus subject to FCC common carrier regulation. That decision marked the latest in a number of interpretive reversals by the FCC—all coinciding with changes in Presidential administrations. This time, however, the agency will not get the judicial benefit of the doubt previously given it under Chevron. About a month after the agency issued its new rule the Supreme Court overruled Chevron in Loper Bright Enterprises, declaring that agencies interpreting ambiguous statutory terms would have to convince the courts that their interpretations were not only reasonable, but the “best reading” of the statute. But before the FCC even gets a chance to defend its latest interpretation—one that has been challenged in court—it must get by an even bigger hurdle. Parties challenging the rule moved to enjoin it from taking effect and a Sixth Circuit motions panel granted their motion, finding that the rule likely exceeded the agency’s authority under the “major questions doctrine.”
This article addresses two principal issues.
First, it points out that while Loper Bright overruled Chevron, it nonetheless directed lower courts to give stare decisis effect to prior agency decisions affirmed on Chevron grounds. While the FCC no longer qualifies for Chevron deference to new interpretations of a statute, lower courts must still give stare decisis effect to the Supreme Court’s determination in Brand X that the FCC had the authority to determine whether broadband access to the Internet was a telecommunications service. Thus, by definition, whether broadband access to the Internet is a telecommunications service cannot be a “major question” too big for the FCC to address—even if its determination no longer qualifies for deference.
Second, there is ample reason for the courts to conclude that the FCC’s current interpretation is the best reading of the statute. The Ninth Circuit said as much in AT&T v. City of Portland, a private cause of action in which the Court stated that Chevron was inapplicable and that cable modem service was a “telecommunications service,” making providers common carriers. No Justice in the Brand X case that had originally upheld the FCC’s contrary interpretation on Chevron grounds had found the Ninth Circuit’s earlier City of Portland decision incorrect. On the contrary, three Justices found the agency’s interpretation unreasonable, one Justice in the majority (Breyer) found the agency’s interpretation reasonable, but “just barely,” and the author of Brand X, Justice Thomas, years later said he was mistaken.
Notes
By Addison Spencer
The First Amendment of the United States Constitution bestows upon American citizens protection and freedom of speech. Case law spanning decades has defined this right, including the forums, individuals, and types of speech that are protected. However, these definitions are not without debate in the political sphere, with one particular area at the epicenter: public schools and libraries. This Note will explore the resurgence of state legislation granting school districts and school boards the power to perpetuate content restriction. This Note will then argue that these laws, combined with society’s increased dependence on the Internet for educational materials, create the impending likelihood for states to use the Children’s Internet Protection Act (CIPA) to infringe upon students’ rights to access constitutionally protected speech. CIPA aims to protect children in schools and libraries from accessing harmful Internet content. However, this Note asserts that an overbearing application of CIPA is a logical outgrowth of social tensions that requires a coordinated prevention plan to properly balance students’ First Amendment rights with a state’s interest to protect against harmful content. Thus, this Note proposes the implementation of a mandatory audit that heightens current reporting standards initiated by the federal E-Rate discount program, which subsidizes funding for schools and libraries to obtain affordable Internet access.
Invisible Infrastructure: Adapting the Commercial Spectrum Enhancement Act to Meet Current Needs
By Andrew Ware
Radiofrequency spectrum is an essential resource to enabling our increasingly connected lives and is critical to military operations to preserve national security. Advancements in technology bring new uses to existing spectrum and demand for spectrum continues to grow—for the United States to maintain its leadership in spectrum policy and technology, spectrum must be carefully managed by the Federal Communications Commission (FCC) and National Telecommunications Administration (NTIA), the agencies responsible for managing spectrum in the United States. Failing to allocate spectrum appropriately has wide-ranging effects, from adverse national security implications to stagnating innovation and engineering progress, and could cause the United States to cede its position as a global leader. This Note focuses on one aspect of spectrum management—the reallocation of federal spectrum for non-federal uses. The current legal framework for repurposing federal spectrum for non-federal and commercial uses, in part defined by the Commercial Spectrum Enhancement Act of 2004, does not meet its purpose of promoting more efficient use of spectrum because it does not adequately incentivize federal incumbents to relinquish or share spectrum, nor does it adequately foster innovation in spectrum use. The United States must update its framework for spectrum reallocation to be more robust, reliable, and flexible—allowing interests in national security, global competitiveness, and a healthy innovation ecosystem to be appropriately balanced.
Alone Together: How the FTC Can Develop a Transatlantic Approach to Consumer Privacy in the Age of Surveillance Capitalism
By Luke Posniewski
In the American patchwork approach to consumer privacy law, private entities generally can collect and use consumer data in a myriad of ways without the consumer’s actual knowledge. This is generally permissible in the U.S. if the companies adequately disclose their purposes and methods of collecting and using consumer data in their privacy policies, which are notorious for their difficulty to understand and ineffectiveness for consumers. This relatively lax approach to consumer privacy has created a tenuous relationship with the E.U., which tentatively does not consider U.S. privacy protections adequate to allow the transfer of personal data to the U.S. outside special arrangements. This circumstance risks losing the enormous economic benefits provided by the transatlantic data transfer. Within the U.S. privacy landscape, the FTC reigns as the chief federal privacy regulator. It is also currently undergoing its uniquely onerous rulemaking procedure to promulgate new rules related to online commercial surveillance and data security. This Note contends that the FTC should base its new regulations on the E.U.-U.S. Data Privacy Principles, which currently allow the transfer of E.U. data to American companies who comply with its requirements. Further, the Note argues that these regulations will harmonize U.S. privacy practices with the E.U. such that E.U. regulators may move towards a favorable adequacy decision for the U.S. while promoting stronger consumer privacy standards for U.S. consumers.