Communication Law Research Articles

A Study on the Improvement Plan of Broadcasting and Communication Law Considering Smart-environment

A Study on the Improvement Plan of Broadcasting and Communication Law Considering Smart-environment

“Freedom for the Thought That We Hate”: Why Westboro Had to Win

Justice Oliver Wendell Holmes’ belief that the Constitution calls for the principle of free thought—“not free thought for those who agree with us but freedom for the thought that we hate”—was severely tested when the father of a fallen Marine sued members of the Westboro Baptist Church who picketed near his son's funeral service. Consistent with its traditions and precedents, the Supreme Court of the United States ruled 8-1 that the First Amendment protected church members’ offensive speech from tort liability. In ruling as it did, the Court properly chose to consider only the case elements it was presented, refused to create a new category of unprotected speech, and in turn eroded the reach of intentional infliction of emotional distress in speech-related cases. “The Court is out of the business of creating new categories of unprotected speech. Get over it.”1 Kathleen Sullivan, attorney and former dean, Stanford University Law School, remarks at Communication Law in the Digital Age conference of the Practising Law Institute, New York (Nov. 10, 2011).

The Need for a New Approach to Regulation of Device Attachment

There has been increasing debate about whether users of communication services should have an “any device” right, i.e. a right to attach devices of their choice to networks to which they subscribe. This debate coincides with a trend toward an “Internet of Things” in which users connect not only computers to the Internet, but also smartphones, set-top boxes, e-readers, tablets, wireless hotspots, navigation devices, wireless routers, hard drives, printers, and telephones.Currently, wide variation exists in a user’s right to attach devices based on network technology. A user's legal ability to attach devices depends on whether the device is attached to a telephone network, video network, cellular network, or the Internet. Part 68 regulations allow attachment of non-harmful devices to telephone networks. Proposed AllVid regulations would allow users to choose navigation devices, but would also allow MVPDs to dictate proprietary adapters. Cellular providers exercise great control over both wireless devices and their functionality. The Open Internet order prohibits blocking of non-harmful devices on fixed broadband Internet access but not on mobile broadband Internet access.In this paper, we investigate whether this convergence of network technology will render useless current laws and regulations in the United States governing device attachment. First, we ask whether technology convergence will cause consumer expectations of various network services to merge. We suspect that users who would not accept an Internet Service Provider dictating what devices the subscriber could attach to their home network may view similar restrictions on set-top boxes or mobile devices with suspicion. To investigate this conjecture, we identify real world scenarios that challenge current U.S. communications law. These scenarios include: consumer choice of set-top boxes; access to MVPD video content through mobile devices; cellular handset certification, crippling and locking; wireless handset subsidization; cellular provider text message blocking; and device-based service plans and device tethering. We conclude that U.S. rules governing device attachment will become unsustainable as network technologies converge.Second, we review the technology underlying attachment and control of devices in telephone, video, and cellular networks and in the Internet. We find that technical differences alone do not justify the inconsistencies in regulation by silo. We further find that the technical differences reveal commonalities in user and provider interests in the use of each type of network.Third, we propose two sets of rights - one intended to protect users of communications networks, and another aimed at protecting providers of communications services – that could be used to unify inconsistent device attachment rules. We return to the real-world scenarios and discuss whether each of these service provider practices would be allowed under our proposed principles. We find that the proposed sets of rights can provide useful guidance in future development of a unified device attachment statute.Finally, we suggest areas for future research. Should a user be guaranteed the right to attach any non-harmful device? How do you define “harm”? Should a provider be able to require a subscriber to use a device supplied by the provider? If so, what functionality should such a mandated device be allowed to implement? Do users have an unfettered right to control their own devices? If so, how can a network provider ensure that all user devices can interoperate with the provider’s network? Does reasonable network management require that a network provider control certain functionality of some user devices?

Traffic Management and Net Neutrality in Wireless Networks

Many wireless ISPs limit the applications that may be used on wireless devices. In the United States, Congress is debating whether wireless network subscribers should have the right to use applications of their choice. We examine whether wireless ISPs should be able to limit applications. We address how wired and wireless networks differ with respect to traffic management, and conclude that wireless networks often require stronger traffic management than wired networks at and below the network layer. We propose dual goals of providing a level playing field between applications offered by ISPs and those offered by competing application providers and guaranteeing wireless ISPs the ability to reasonably manage wireless network resources. We consider three scenarios for how applications may be restricted on wireless networks, and find that none achieves both goals. We review United States communications law, and conclude that ISPs should be prohibited from giving themselves an unfair competitive edge by blocking applications or by denying QoS to competing application providers. We propose a set of regulations based on network architecture and communication law that limits an ISP's ability to restrict applications by requiring an open interface between network and transport layers. We illustrate how ISPs may deploy QoS within such a regulatory framework, and how this proposed policy can achieve our goals.

FAILED TRANSMISSIONS AND BROKEN HEARTS

This paper explores a series of nineteenth century court cases involving the failed delivery of telegraphic ‘death messages.’ In these cases, friends or family members of a deceased or dying person failed to receive a telegram announcing the death or illness, and thus either missed their loved one's funeral or were unable to see them before they died. The intended recipient of the telegram then sued the telegraph company over the emotional suffering they experienced as a result. Those cases that were decided on behalf of the presumably emotionally wronged party offered a complex understanding of the public responsibilities of telecommunications companies. In the view of the courts that made these decisions, these companies were not simply responsible for transmitting messages. They also had an empathetic duty to the feelings of their customers. These court decisions have much to teach media historians about nineteenth century communications law and the emotional implications of new technologies.

Disruptive Internet Innovation and Communications Law

The Internet has become a central platform for communications and culture worldwide. In the process, innovation on the Internet has led to tremendous economic, social, and democratic benefits that could not have been predicted in advance. Disruptive technologies, in particular, shape the Internet and produce a vast portion of its value. Disruptive innovation has a transformative effect on markets and produces significant tensions with existing businesses. To defend their business models and revenue streams, embattled incumbents have strong incentives to stifle the development and use of disruptive technologies. As the services, devices, applications, and networks that comprise the Internet evolve, many are shifting away from the Internet’s open roots towards a closed system, in which a company with power at one layer can control the behavior of its horizontal and vertical peers. The result is a potential for significant stifling of disruptive innovation in the mobile Internet ecosystem, and a real risk of lost future social and economic benefits.Strong legal protections are needed to ensure that the Internet avoids stagnation and remains friendly to valuable disruptive innovations. Recent actions by the FCC to sift through this context and adopt net neutrality rules will have an impact on Internet innovation. However, there is a real possibility that the FCC’s rules, as adopted, will facilitate the emergence of restrictions throughout the Internet’s layers, particularly in the context of mobile broadband networks. This paper engages in a targeted analysis of recent net neutrality regulations adopted to govern Internet access services, concluding that more work must be done to ensure the future of an open, dynamic, and disruptive innovation-friendly Internet.

Современный эпистолярный дискурс: взгляд сквозь призму законов текстовой коммуникации

Современный эпистолярный дискурс: взгляд сквозь призму законов текстовой коммуникации

Legal Challenges For Text-Message Marketers

<p class="MsoNormal" style="text-align: justify; margin: 0in 34.2pt 0pt 0.5in;"><span style="font-size: 10pt;"><span style="font-family: Times New Roman;">As text-messaging usage climbs in the United States, marketers are scrambling to find ways to integrate this new technology into the marketing communications mix.<span style="mso-spacerun: yes;">  </span>Marketers must, however, be mindful of current U.S. Law – federal and state – which may restrict text message use.<span style="mso-spacerun: yes;">  </span>Although no current federal law exists to specifically regulate text-message marketing, several wireless communication laws, anti-spamming laws, and case law may apply.<span style="mso-spacerun: yes;">  </span>This paper reviews the current statistics and trends regarding usage of text-message marketing in the United States, presents “spamming” opportunities, reviews current federal law and state law by example, and makes recommendations to marketers considering use of text-message marketing.</span></span></p>

Didactic category of "goal setting" in relation to the teaching of Russian language and speech standards under conditions of reform of Russian education system

The paper is devoted to the didactic category of goal setting and it's use in the course of rules and laws of communication.

"Jog, Világ, Stádium" - A kommunikációs jog világszintű fejlődésének stádiumai

"Jog, Világ, Stádium" - A kommunikációs jog világszintű fejlődésének stádiumai

The Coming of Age of EU Regulation of Network Industries and Services of General Economic Interest

This paper is a contribution to the 2nd edition of Craig and de Burca, The Evolution of EU Law. It highlights key trends in EU law in the last ten to fifteen years, as regards the regulation of network industries and of services of general economic interest (SGEIs) more generally. Our central claim is that over the relevant period of time, EU law has been – and still is – in the process of moving from one legal paradigm to another. The first paradigm is more traditional, static, formalistic and self-contained (mono-disciplinary). Its hallmark is the use of legal definitions and concepts to create categories in which phenomena are placed, by way of pigeonholing or labeling, and to which consequences are attached. It was more appropriate in earlier times when EU law was concerned with establishing market access and realizing the Internal Market. The second paradigm is more dynamic, integrative and inter-disciplinary. Its hallmark is the use of general guidelines and principles to assess specific situations in a wider sectoral setting, with progressive refinement, until the point where a conclusion can be reached and consequences attached. It leads to ‘managed competition’, where EU law integrates other objectives besides market access. As for substantive law, EU electronic communications law, since 2002, presents the best – albeit not complete – example of the new paradigm, with its reliance on technological neutrality and economic analysis. EU energy law has not gone as far down that path. Interestingly, the ECJ judgment in Altmark can be seen as an attempt to steer the law concerning SGEIs away from formalism, towards the new paradigm. However, developments following Altmark show that the other institutions have not fully followed the ECJ. As for institutions, EU electronic communications and energy law have followed a similar path, away from formalistic separations (i) between EU and Member State institutions, (ii) along national borders or (iii) between regulation and competition law. At the same time, the separation between the regulatory authority and the national legislative and executive powers has been strengthened. The policing of SGEIs under Article 106(2) TFEU would benefit from following a similar institutional path.

The Broadband Credibility Gap

With the D.C. Circuit’s recent ruling in Comcast v. FCC, the court has thrown the Federal Communications Commission’s efforts to promote an “Open Internet” into legal limbo. In response, FCC Chairman Julius Genachowski has announced that he intends to seek to impose a “Third Way”, whereby the Commission would reclassify broadband transport as a “telecommunications service” under Title II of the Communications Act, coupled however with aggressive use of the FCC’s forbearance authority under Section 10 of the Communications Act to eliminate many of the more burdensome requirements of Title II regulation. In so doing, the Commission would ostensibly create some sort of “Title II Lite” regulation for broadband Internet services. To explore this important topic, we first provide a simple game theoretic analysis that exposes the underlying issue surrounding regulatory classification. We demonstrate that a “light touch” toward regulating broadband in not a credible commitment. Moreover, we use the current Commission’s own actions to demonstrate it lacks the necessary self-discipline or mindset for “light touch” regulation. Next, we consider the investment effects of reclassification using a theoretical model of investment. In this model, a model firm faces either “weak” or “strong” regulation. This model shows that an increase in the ex ante probability of “strong” regulation -- that is, reclassification -- weakens investment incentives. Third, we provide evidence from the financial markets supporting the negative investment effects implied by the theory. This same evidence also reveals that investors have no confidence that the Commission possesses the self-discipline required to successfully implement “light touch” regulation. Finally, we show that the Comcast decision is not a threat to ancillary authority for broadband; the Commission merely has to make better arguments to tie the proposed regulation to the Commission’s express statutory objectives under Title II, III, or VI of the Act. Although the Chairman’s “Third Way” may provide the Commission with a perceived blanket of legal comfort, that legal certainty comes at the expense of financial uncertainty. The Comcast court makes clear that Title I continues to provide sound legal footing to protect consumers from harm -- at least until Congress decides to update and amend existing Communications law with a cleaner framework.

Book Review: Network-Based Governance in EC Law: The Example of EC Competition and EC Communications Law, by Maartje de Visser

Book Review: <i>Network-Based Governance in EC Law: The Example of EC Competition and EC Communications Law</i>, by Maartje de Visser

Censorship in a Liberal State: Regulating Talk on Canadian Radio in the Early 1930s

In the summer of 1933, Hector Charlesworth, Chairman of the recently created Canadian Radio Broadcasting Commission (CRBC), Canada's first public broadcaster, spoke before the annual assembly of th...

Judicial Accountability and New Governance

To many legal analysts, accountability presupposes at least a minimum level of judicial oversight. This article addresses the appropriateness of this belief in the context of new governance. Taking the networked system for the enforcement of European competition and electronic communications law as a case study, it is shown that this mode of governance is at present characterized by a judicial accountability deficit as regards soft law instruments. Thereafter, this article directs a critical inquiry into the desirability and feasibility of introducing judicial oversight, including a cost-benefit analysis to determine the economic prospects of such a development. The analysis reveals that ensuring judicial oversight seems beset with legal difficulties and generates considerable economic cost. Finally, this article examines the possibility of relying on participation of affected interests to achieve the ends pursued by judicial review. Although it cannot be said that participation and judicial review are perfect substitutes or that the former is without problems of its own, in the new governance setting discussed here, participation has good prospects of realizing the more desirable, because efficient, outcome.

How to Make Bad Law: Lessons from the Computing and Communications Sector

There is a clear trend for law and regulation, particularly in the computing and communications sector to become increasingly detailed. The perceived benefit of this approach to lawmaking is increased certainty as to compliance, but that uncertainty may be illusory. There are serious disadvantages to over-complex laws, particularly in that their normative effect is greatly weakened but also in terms of over-complexity, contradiction and too-frequent amendment. The combined effect of these disadvantages can be to produce a “bad” law system, assessed in terms of Fuller’s internal morality of law. It may also result in a law-system which substantially fails to achieve its intended aims. This paper proposes that these defects can be cured by abandoning the search for certainty. In its place we should substitute a method of lawmaking which requires the law’s subjects to make their own qualitative assessments as to whether they were meeting the obligations imposed on them. This will not only make the law more easily understandable by those to whom it applies, but will also increase the normative effect of computer and communications law.

Rethinking Criminal Libel: An Empirical Study

The prevailing view of criminal libel among communication law scholars in the United States is that there are very few prosecutions, that most of the prosecutions are about politics or public issues, and that none of the prosecutions are necessary because victims of defamation can sue for civil libel. The results of an empirical study of all Wisconsin criminal libel cases from 1991 through 2007, however, suggest that criminal libel is prosecuted far more often than realized, that most criminal libel prosecutions have nothing to do with political or public issues, and that the First Amendment is an effective shield on the rare occasions when a criminal libel prosecution is politically motivated. This article concludes that criminal libel can be a legitimate way for the law to deal with expressive deviance that harms the reputations of private figures in cases that have nothing to do with public issues.

Privileged communication in the school psychologist–client relationship

AbstractIn the years since the 1996 Supreme Court Jaffee v. Redmond decision, many states broadened the scope of their laws governing privilege to include non‐doctoral school psychologists. This article addresses the meaning of the term privileged communication and identifies common exceptions to privilege. Findings from a computerized search of the status of privileged communication between school psychologists and their clients in all states are reported. Implications of privilege communication laws for the delivery of school psychological services are discussed. © 2009 Wiley Periodicals, Inc.

Freedom of Expression in Communicative Cities

This essay examines the relationship between studies in urban communication and freedom of expression. It introduces the concept of the “communicative city” and then explores those elements that regulate freedom of expression in a city. It examines the web of regulations that support urban communication contrasted with those which hinder and therefore disqualify a city from being “communicative.” The urban environment is explored in an effort to develop a paradigm of urban communication law.

On Synchronous Robotic Networks—Part I: Models, Tasks, and Complexity

This paper proposes a formal model for a network of robotic agents that move and communicate. Building on concepts from distributed computation, robotics, and control theory, we define notions of robotic network, control and communication law, coordination task, and time and communication complexity. We illustrate our model and compute the proposed complexity measures in the example of a network of locally connected agents on a circle that agree upon a direction of motion and pursue their immediate neighbors.