Volume 67.2

Articles

The Story of the FCC’s Net Neutrality Decision and Why It Won’t Stand Up In Court
by Ajit Pai

The Federal Communications Commission is coming under intense political pressure to reclassify broadband Internet access as a common carrier telecommunications service under Title II of the Communications Act. Yet, almost no attention has been directed at the fine details of how reclassification will be implemented. Relying on the plain terms of the FCC’s governing statute, current case law, and the Commission’s own precedent, we examine such details in this Article and conclude the following: First, reclassification would turn edge providers into “customers” of Broadband Service Providers (“BSPs”), and this new “carrier-to-customer” relationship (as opposed to a “carrier-to-carrier” relationship) would require all BSPs to create, and then tariff, a termination service for Internet content under Section 203 of the Communications Act. Because a tariffed rate cannot be set arbitrarily, and since a service cannot be generally tariffed at a price of zero, reclassification would require all edge providers (not their carriers) – as customers of the BSP – to make direct payments to the BSPs for termination services. SEcond, as competition is the basis for Section 10 forbearance, the Commission is precluded from setting aside tariffing because it has labeled all Broadband Service Providers as “terminating monopolists.” As such, the agency has boxed itself in for mandatory tariffing under Title II.

The FCC’s Knowledge Problem: How to Protect Consumers Online
by Hon. Maureen K. Ohlhausen

To protect consumers online, we need informed, flexible, and fact-based enforcement supplemented with self-regulation using technical standards developed through consensus-based, multi-stakeholder organizations of engineers, consumers, and businesspeople. In this article, Commissioner Ohlhausen first describes a framework for thinking about regulation of fast-approaches. Next, she briefly summarizes the history of the net neutrality of fast-changing industries and compares and contrasts the FCC and the FTC’s approaches. Next, she briefly summarizes the history of the net neutrality issue, including the FCC’s 2010 Open Internet Order, the subsequent Verizon decision striking it down, and the most recent action to reclassify broadband as a Title II service. Lastly, Commissioner Ohlhausen offers some observations about the reclassification decision and its aftermath and suggests a path forward for protecting consumers online.

Notes

Regulation Killed the Video Star: Toward a Freer Market in Broadcast Television
by Ryan Radia

A recent series of blackouts – that is, impasses between broadcast stations and multichannel video programming distributors?has brought retransmission consent to the forefront of regulatory policy issues facing the federal government. As the video marketplace has evolved, the longstanding framework governing how broadcast television is distributed has grown obsolete, especially with the advent of such Internet-based services as Netflix and Hulu. Yet the FCC retains broad authority to regulate the video marketplace to ensure so-called “good faith” negotiations between broadcasters and pay-television distributors. To simplify the status quo and protect consumers from unwarranted regulatory intervention, Congress should amend the Communications and Copyright Acts to address this existing disparity by aligning the rights and obligations of broadcast programmers with those of other television content owners.

Why Silence Isn’t Golden: Analogizing the FCC’s Discontinuance Regulations to Prevent Retransmission Consent Blackouts
by Rachel Noteware

Television channel blackouts due to breakdowns in retransmission consent negotiations are at an all-time high. The outlook is not likely to improve as broadcasters and cable companies consolidate, and deeper pockets on both sides will allow parties to withstand longer blackouts in the future. While everyone agrees that consumers ultimately pay the price in the form of rising cable fees while at the same time missing out on their favorite programming, there is little agreement on the root of the problem or how to fix it. Numerous stakeholders, including Congress, industry lobbying groups, and the FCC, are jumping into the retransmission consent debate.

Significant disagreement also exists about the extent to which the FCC can intervene in retransmission consent negotiations. While proposed legislative and FCC efforts to strengthen current good faith negotiating standards are commendable, they may not be realistic or robust enough to prevent blackouts. How can the FCC use its existing authority to discourage blackouts during retransmission consent negotiations? This Note argues that the FCC’s policies and methods for intervening when stations discontinue operations can inform the FCC’s role in preventing service disruptions due to blackouts. Motivated by the same public interest as preserving access to local and diverse media sources, the discontinuance framework of adjustable forfeitures based on the harm of the service disruption can guide FCC implementation of its statutory authority to prevent retransmission consent blackouts.

Treating Consumer Data Like Oil: How Reframing Digital Interactions Might Bolster the Federal Trade Commission’s New Privacy Framework
by Andrew Hasty

As desktop PCs give way to smartphones, and as engineers embed everyday objects – like cars, eyeglasses, and HVAC systems – with the ability to sense, remember, and communicate information to anyone or anything with an Internet connection, enterprising companies extract enormous amounts of consumer data in an effort to squeeze as much value out of consumers’ attention as possible. In many ways, data has become the new oil. While this trend promises to improve efficiency, lower costs, and create products and services that enrich consumers’ lives, it also raises complicated and evolving privacy dilemmas.

To address these dilemmas, the United States relies heavily upon the Federal Trade Commission to safeguard consumers without stifling innovation. Concerned that technological advancement may be leaving privacy safeguards behind, the FTC recently unveiled a new framework for redressing privacy’s dilemmas while also acknowledging that limits to its authority prevent the agency from achieving the framework’s goals. To overcome these limits, the agency asked Congress to consider enhancing its privacy enforcement powers, but this request has drawn criticism from those who fear that an omnibus or top-down approach would suppress innovation.

In order to ensure that privacy safeguards keep pace with rapidly evolving technology without suppressing innovation, this Note argues that consumers’ digital interactions should be recognized as the commercial exchanges of value that they are. Recognizing the value exchange that occurs when consumers search the web or download apps would create a flexible mandate for entities that collect consumer data to disclose the bargain’s material terms by requiring informed consent. This, in turn, might lead to “simplified choice” and “privacy by design” as companies competed over the “price” charged to consumers. While more critical thinking needs to be devoted to the topic, recognizing consumers’ digital interactions as the commercial exchanges of value that they are could substantiate the FTC’s new privacy framework without relying on congressional action, creating a flexible regulatory solution that scales to meet privacy’s evolving dilemmas.