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Things I dont know:

Publisher liability
Public interest
Obscenity (national standard discussion in Sable)
Challenging regulations:
A. Constitutional Challenge
a. 1st Amendment speech regulation
1. Is the government acting? If its an FCC regulation, yes
2. Is the person speaking?
a. Yes, exercising editorial control is speaking
i. Newspapers (Miami Herald)
ii. Cable operators engage in editorial
discretion by selecting programming (Turner
I)
1. Also Community Communications Co.
v. Boulder (cable is communicative)
iii. Publishers are speakers
iv. Co-authors on the internet are speakers
(Roommates.com) where website prompts,
edits, encourages content or induces by
providing forms
a. Merely delivering content from source to end-user
is not speaking
i. Telephony mere conduit, does not curate
content coming across its wires NW Tel.
Exch. so can regulate entry,
ii. Internet: Verizon v. FCC (open internet)
3. Is it content-based or content-neutral? Whether
government has adopted a regulation of speech because
of agreement or disagreement with the message it
conveys (Ward)
a. Licensing could be affected by black mark from
playing indecent material content-based at time
when kids would be exposed (Pacifica)
i. MEDIUM WARP
1. Uniquely accessible to kids
a. Cannot distinguish kids and adults
2. Medium pervasive
a. Element of unfair surprise
(consumer expectations)
ii. Ends: interest in protecting kids, helping
parents police their kids

b.

c.

d.

e.

iii. Means: emphasizes narrowness of ruling


(black mark on one individual provider whose
impact is only related to licensing renewal);
adults still have the ability to get indecent
materials elsewhere
ACT III v. FCC (D.C. Cir. 1995) upheld timechanneling of radio broadcast
i. Deferential to medium warp and strict
scrutiny light outlines in Pacifica
ii. Interest: kids
iii. Tailoring: specifically addressing harm (based
on evidentiary finding regarding when kids
watch tv)
1. Mot a total ban, but when kids most
likely to watch
Total ban of indecency (Sable Dial-a-porn)
content-based telephony
i. Compelling interest: protecting kids
ii. Not narrowly tailored: total ban facially
overbroad
1. Overly broad:
a. Burdens legally protected
(indecent) speech to adults
2. Effective/ alternatives
a. Technological measures may be
capable of effectively filtering diala-porn to only kids by
authenticating adults
i. Credit card authorization
ii. Access codes
iii. Scrambling
b. Regulate phone company to default
block service with opt-in option
Total ban of indecency and obscenity (Cruz v.
Ferre) content-based on cable
i. Important government interest: protecting
kids
ii. Not narrowly tailored
1. Over-inclusive: total ban (facially
overbroad)
2. Alternative measures: parental controls
(lock-boxes, programming guidelines)
Forcing speech under right of response is content
based
i. Radio: Red Lion (only legit because of
resource scarcity) and

f.

g.

h.

i.

1. Important government interest: in light


of scarcity of medium, ensures access
to diverse and antagonist views, 1st
amendment protects listeners as well
as speakers
ii. Newspaper: Miami Herald (economic
scarcity i.e. monopoly)
1. No important government interest
where no medium scarcity/alternative
outlets to voice viewpoint
Setting aside time (3 hours/week) for childrens
educational programming on broadcast contentbased (CTA Discussion)
i. Medium warp: unique context of broadcast
(scarcity), 1st amendment concerns rights of
listenersdeference to FCC
ii. Important government interest: promote
positive development of children, parental
supervision
iii. Narrowly tailored:
1. Very limited restraints as only
guidelines, three hours a week, no
quota, no penalty
2. Less restrictive than Pacifica and this
accomplishes the same goal so its ok
Internet filters of indecent material contentbased (South Dakota v. Dole upholding Childrens
Internet Protection Act)
i. Librarys receipt of funding (even though
conditioned on filters) is a subsidy, not a
penalty therefore not an unconstitutional
condition
ii. Would not be unconstitutional for the library
to implement filters on its own because of
public forum doctrine (internet not provided
as a public forum)
Targeting sexually explicit material is contentbased (US v. Playboy)
i. Not narrowly tailored: effective statutory
alternative to opt-out (as opposed to
requiring opt-in)
Total ban on trafficking in patently offensive
material online is content-based (Reno v. ACLU
striking down CDA-Child decency act)
i. No medium warp

ii. Important government interest: protecting


kids
iii. Not narrowly tailored
1. Over-inclusive: criminalizes too much
(stops consensual speech among
adults, educational or approved by
parents), could be merit in some of the
speech (inconsistent use of
indecent/obscene)
2. Under inclusive: kids age verification
technology
3. Alternatives:
a. Could be more narrowly drafted
(not limited to commercial speech;
better, consistent definitions)
b. Technology: tag material for
parental control
j. Regulating material harmful to minors is
content-based on internet [Ashcroft v. ACLU
striking down COPA (CDA.2)analogous to
Playboy where theres a choice between blanket
ban and specific technological solution available to
parents]
i. Compelling interest: protect kids
ii. Not narrowly tailored: less restrictive
alternative among available effective
alternatives and government did not meet
its burden of showing alternatives were less
effective
1. ID check (age verif.) safe harbor
2. Blocking and filtering software likely
more effective and less restrictive
3. Educational info to encourage parental
use of available software
4. Government did not
k. Defamation: false and defamatory statement,
liability for negligence of publisher
l. Where favoring speakers, not their message,
content neutral
i. Political speech requirements to provide time
and pricing to all desiring parties/candidates
diversity of antagonistic views
ii. Turner (94) must carry broadcasters ok
(just space for speaker) must-carry rules, on
their face, impose burdens and confer

benefits without reference to the content of


speech
1. Compelling interest: value of free tv,
access to info, local content, diverse
and antagonistic views which is
threatened by cables bottleneck
structure and monopoly power
promotes competition
2. Remanded because lacks evidentiary
record
iii. Time Warner (96) leased access to
unaffiliated commercial entities contentneutral
1. No medium warp
2. Important interest: diversity (ensure
diverse and antagonistic views); more
commercial content increases types of
content available
3. No greater burden than essential to
accomplish interest: if people dont ask
for it, left to cable station for use;
designating capacity; does not dictate
what is said on other channels
iv. Time Warner (96) set aside for
noncommercial programming or educational
info for DBS content-neutral plus (does not
indicate specific message, just general
type/genre of content, but kin)
1. Medium warp: spectrum scarcity of
rotations leads to relaxed scrutiny of
broadcast media
2. Important interest: availability of
diverse info: ensuring access to
noncommercial programming
(otherwise would not have an
economic incentive to provide?)
3. Not substantially more speech than
necessary in light of scarcity and
content neutrality ; company can use it
if no one else asks (based on DBS
channels, not really a burden)
v. Open internet, treating all websites the same
is not related to the message they
communicate
1. Where incidentally favors form (i.e.
words vs. video) content-neutral

because independent of underlying


message
m. Capacity set-aside is content-neutral because it
is based on how many channels the station has,
not their underlying message. Also does not
dictate what must be carried on the other
channels, no way to get around the rule by
favoring certain programming. Promotes diversity
and does not substantially burden because can be
used if no one else asks
i. Time Warner forcing DBS and cable to set
aside percentage for noncommercial
programming of an educational or
informational nature is content-neutral
ii. Time Warner leased access to unaffiliated
commercial entity content-neutral
n. Rate-regulation of cable does not directly impact
programming by encouraging one type (low-cost)
and discouraging another (high-cost) contentneutral (Time Warner DC 95)
i. Medium warp: bottle-neck, gatekeeper,
expensive, grant of exclusive franchise from
government
1. Therefore intermediate scrutiny
ii. Important interest: competition where entry
is so difficult (natural monopoly) and
diversity (addresses market failure to
accomplish compelling interest)
1. Protecting consumers from monopoly
prices charged by cable operators who
do not face effective competition
iii. Does not burden substantially more speech
than necessary : addresses lack of effective
competition, if effective competition
emerges this rule goes away
1. Because they are compensated (pass
through), not burdensome on the type
of speech that may be provided (does
not degrade quality to ensure price)
o. Horizontal and vertical consolidation rules (caps)
are content-neutral
p. National Television Station Ownership Rule (NTSO)
[Fox v. FCC (D.C. Cir 2002)] content-neutral
i. Medium warp: scarcity in broadcast
implicates diversity of speakers able to
convey message

1. Even if it doesnt make sense, in


broadcasting
ii. Based on speaker, not message; reasonable
means of addressing network practice
contrary to the public interest not upon
specific views
iii. Interest: promote diversity of speakers
iv. National ownership cap increases the
number of different voices heard in the
nation; reasonable means of counteracting
ii. Medium Warp: (Pacifica)
1. Is the medium pervasive? (Would there be unfair
surprise?)
a. Yes, Broadcast and DBS have scarcity and
therefore public interest obligations (Under Title III
of Communications Act
i. A licensed broadcaster is granted the free
and exclusive use of a limited and valuable
part of the public domain; when he accepts
that franchise it is burdened by enforceable
public obligations (CBS v. FCC cited in CTA
discussion) (it does not violate the first
amendment to treat licenses given the
privilege of using scarce radio frequencies as
proxies for the entire community, obligated
to give suitable time and attention to
matters of great public concern (Red Lion)
1. Inherent physical limitation on the
number of speakers who may use
themedium has been thought to
require some adjustment in traditional
first amendment analysis to permit the
government to place content
restraints, and impose certain
affirmative obligations, on broadcast
licenses (Red Lion)
a. Because more speakers than
frequencies it is a scarce resource
that requires government
intervention as a practical sine qua
non of its existence. (red lion)
ii. of all forms of communication, it is
broadcasting that has received the most
limited First Amendment protection
(Pacfica)

iii. only a tiny fraction of those with resources


and intelligence canhope to communicate by
radio at the same time (Red Lion)
1. The same is true for DBS today.
Because the United States has only a
finite number of satellite positions
available for DBS use, the opportunity
to provide such services will
necessarily be limited (Time Warner v.
FCC 1996)
a. Because DBS is subject to similar
limitations, subject to the same
eless rigorous standard of First
Amendment Scrutiny articulated
in Red Lion
b. No
i. Cable is not as intrusive, requires affirmative
decision to choose extra programming,
repeated monthly decision by paying
subscription
1. whatever relevance these physical
characteristics may have in the
evaluation of particular cable
regulations, they do not require the
alteration of settled principles of our
First Amendment jurisprudence.
ii. Telephony (dial-a-porn) requires affirmative
action to call service
1. There is no "captive audience" problem
here; callers will generally not be
unwilling listeners. The context of dialin services, where a caller seeks and is
willing to pay for the communication, is
manifestly different from a situation in
which a listener does not want the
received message.
2. Uniquely accessible to kids (or addressed to harm)?
a. Is there a way to easily distinguish children from
adults and only target kids?
b. Where there are parental control options (opt-in to
content, programming guides with ratings and
warnings)
3. Incidental burden on speech:
a. De facto exclusive franchising (Preferred) not ok
b. CCC : districting plan implicates public interest
iii. Strict Scrutiny

1. Compelling government interest:


a. Protecting kids from exposure to materials that
would impair ethical or moral development
(Pacifica, Action for Childrens Television
2. Narrowly tailored: When considering whether a law is
narrowly tailored, the court will consider whether it is
over-inclusive, under-inclusive, and if a less-restrictive
means (that is at least as effective) is available
(underlying cost-benefit analysis)
a. Under inclusive
i. Unclear that it would actually address the
supposed harm (Cruz, Sable
b. Over inclusive
i. Total Ban
c. Alternatives: "To be a "less restrictive
alternative," 504 must be both less
restrictive in the sense that it inhibits
protected speech to a lesser degree and it
must be a viable alternative in that it allows
the Government to achieve the ends that are
its compelling interest. " Playboy Entertainment
Group, Inc. v. U.S., 30 F.Supp.2d 702, 717 (1998)
i. Government regulates/technology
1. V-Chip implementation
2. Programming ratings
3. Opt-in/out (ok to burden a business
with compliance)
4. Parental controls
iv. Intermediate Scrutiny
1. Important government interest: 1. the initial inquiry
must be whether the regulated activity is sufficiently
imbued with elements of communication to fall within
the scope of the First ... Amendment[].
2. 2.whether the regulation is justified without reference
to the content of regulated speech. Hill, 530 U.S. at
720, 120 S.Ct. 2480. The government's purpose is the
controlling consideration. A regulation that serves
purposes unrelated to the content of expression is
deemed neutral, even if it has an incidental effect on
some speakers or messages but not others. Ward, 491
U.S. at 791, 109 S.Ct. 2746.
a. Diversity
i. It has long been a basic tenet of
national communications policy that the
widest possible dissemination of
information from diverse and

antagonistic sources is essential to the


welfare of the public. AP v US (1945)
ii. Goal: variety of viewpoints
b. Localism: responsive to needs and interests of
their local communities
i. Local program service is a vital part of
community life. A station should be ready,
able, and willing to serve the needs of the
local community NBC v. US (1943)
ii. "To measure localism, the Commission
focused on the selection of programming
responsive to local needs and interests, and
local news quantity and quality." Prometheus
Radio Project v. F.C.C., 373 F.3d 372, 447
(2004)
iii. Cross-ownership furthers this goal focusing
on local news and current affairs (public
affairs programming)
1. Quantity: Shared tech support will
increase
2. Quality: more resources: newspapers
are great, broadcasters not so much
but when combined they both level up
c. Competition: audience share (eyeballs)
i. Goal: competitionprovides an incentive to
television stations to invest in better
programming and to provide programming
that is preferred by viewers (Prometheus II)
1. When a rule advances dual goals (such
as competition and diversity) that does
not mean the FCCs rationale premised
on one alone is unreasonable Id,
d. Value of having free TV, access to info, local
diverse antagonistic sources (preserving
broadcasting in Turner)
e. Important government interest: encouraging
deployment on reasonable and timely basis of
advanced communications capability AND
promotion of continued development of internet
and the virtuous cycle (investing in edge service
providers)
i. Open internet should survive intermediate
scrutiny as
3. No greater than essential to further interest OBrien
(does it burden substantially more speech than
necessary Ward)

b. 5th Amendment:
i. Takings
ii. Void for vagueness: fleeting expletives
c. Unconstitutional Condition:
i. Would it be unconstitutional if the entity did it on its own?
B. Violation of statutory provision (policy)
a. Standard:
i. Chevron deference
1. Is the statute vague on this point and therefore
indicates congressional intent to delegate
interpretation to commission?
a. Whether the statutes plain terms directly
address the precise question at issue
2. Is commissions interpretation reasonable?
ii. Ancillary Jurisdiction (Southwestern)
1. Wireline or radio?
2. Reasonably ancillary to accomplishing statutorily
granted authority/responsibility?
b. Mobile telephony
i. Discriminates among providers by treating similarly situated
parties differently when statute says no discrimination
(Metro PCS v. San Fran)
c. Classifications
i. Internet: end user uses two different services, transmission
pathway (telecommunication service) and internet access
service (enhanced service provided by an ISP)
d. Canons of interpretation
i. A specific provision controls one of more general application
C. Arbitrary and Capricious (APA): Title 5 USC 706 (administrative
procedure act) "The agency's action in promulgating such
standards therefore may be set aside if found to be "arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law." 5 U. S. C. 706(2)(A);" Motor Vehicle Mfrs.
Assn. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 41
(1983) agency must examine the relevant data and articulate a
satisfavroty explanation for its action including a rational connection
between the facts found and the choice made
a. Overton (1971) court must review on bases of whole
administrative record that was before the agency at the time
decision madedid they follow necessary procedural
requirements? Does the evidence reasonably support conclusion?
b. Whether FCC casually ignored prior policies and interpretations
or otherwise failed to provide a reasoned explanation
c. Irrational:
i. Prometheus I where Commissions 2003 Media Ownership
Order did not justify its choice and weight of specific media

outlets (should have excluded Internet), or its assumption of


equal market shares (stupid intramedia weighting), did not
rationally derive cross-media limitations rules from Diversity
Index results (bad methodology)
d. Lack of evidence (of the harm)
i. Fox Television v. FCC (D.C. Cir. 2002) where there is no
evidence of harm/adverse effect on market, figures alone
are insufficient to support cap on horizontal consolidation,
thus not reasonable to assume it promotes competition (no
evidence that there is more competition)
1. Competition is concerned with advertisers who want to
target the whole market regardless of who owns what
percentage and therefore this does not affect
competition
2. Common ownership actually facilitates efficiencies and
results in programming customers want
ii. Verizon v. FCC where FCC provided empirical predictions
about harm in the absence of Open Internet rules, court
found sufficiently good reasons for regulation (to promote
competition and deployment of broadband services through
virtuous cycle of edge-provider innovation)
e. Where important factor is not considered or misconstrued
i. Fox Television v. FCC (D.C. Cir. 2002) where justification is
on local diversity, a national cap has no bearing on
promoting this goal
1. No evidence that not-group owned stations are better
at responding to local news
2. No relationship between relaxation of local ownership
rule and retention of national owner cap
ii. Prometheus I: weighting of media sources
iii. Primeco Personal Communications v. City of Mequon Where
FCC misconstrued evidence relating to adequacy of
coverage and co-location (denial of wireless service facility)
f. Change of standard (Overton and State Farm): need not
demonstratethat the reasons for the new policy are better than
the reasons for the old one; it suffices that the new policy is
permissible under the statute, that there are good reasons for it,
and the agency believes it to be better [explicitly disavow prior
interpretation] (FCC v. Fox 2009)
i. Not permissible under the statute:
1. Insufficient Notice of policy change (Prometheus II
striking down cross-media limitations rules against
consolidation; CBS v. FCC fleeting expletive cannot
apply retroactively)
ii. Good reasons for new policy that are reasonable

1. Technology makes it easier to bleep out, so reasonable


to penalize for not doing this, childrens behavior of
mimicry is sufficient to demonstrate potential harm
(Fox fleeting expletives) Ok when based on relevant
data and satisfactory explanation
2. Expanding scope of enforcement was reasonable when
there was no logical reason for distinguishing between
literal and nonliteral uses of offensive words (FCC v.
Fox 2009)
3. Verizon v. FCC : changed course given change in user
expectations and
4. Brand X: reasonable to freshly analyze the meaning of
enhanced service in light of consumer expectations
and use this to determine what is being offered as
the factor that determines classification as opposed to
whether facilities are owned
iii. Did not expressly denounce prior interpretation and
therefore unclear that the agency believes it to be better
(Comcast v. FCC)
D. FCC does not have the authority (acting beyond its jurisdiction)
a. Southwestern analysis
i. Whether interstate(/foreign) communication by wire or
radio?
1. Internet is by wire
2. Telecommunications is
a. Between or among points specified by user
b. Of information of the users choosing
c. Without change in form or content (of info)
ii. Whether accomplishing public interest, necessity or
convenience (is it necessary to ensure achievement of
commissions statutory responsibility)
1. If new technology, is it reasonably ancillary to
accomplishing this goal in one of the previously
regulated forms of technology (is this just evening the
playing field as technology develops)
2. Yes, when new technology is supplanting previously
regulated tech and this rule already applied to that
tech
b. Brand X
i. Chevron deference because Portland decision does not
state that its interpretation is the only one possible thereby
foreclosing commissions interpretation
1. Do plain terms address this point? No, offer is vague.
2. Is commissions interpretation of offer that results in
classification of internet as only an information service
reasonable because it does not offer

telecommunication service as an end product in itself


to the user?
a. Yes, telecommunication service is integral to
offering internet therefore classifying as only
information service is reasonable.
ii. Is it arbitrary and capricious to treat DSL and cable modem
services differently?
1. Yes, reasonable for commission to address changes in
the market and implement service order incrementally
is reasonable.
c. 152(a): grants authority to regulate interstate radio and wireline
communications
d. 154(i): commission shall perform any and all acts, issue orders as
may be necessary in the execution of its functions
e. Whether FCC pre-empts state regulation:
i. Interstate or intrastate: end-to-end analysis based on
physical end points of the communicationconsider
continuous path of communication beginning with the end
point at the inception of a communication to the end point
at its completion (rejects attempts to divide
communications at any intermediate points)
ii. Whether state regulation would thwart or impede the lawful
exercise of federal authority over the interstate component
of the communications
1. OR FCC can preempt where state regulation prohibits
or has the effect of prohibiting the ability of an entity to
provide any interstate or intrastate telecommunications
47 USC 253
iii. Whether it is possible to separate interstate from intrastate
components for enabling dual federal and state regulations
to coexist without negating federal policy and rules
iv. Are FCC policies and goals consistent with pre-emption of
state regulation?
E. Not a regulatory taking
a. Enhances value of broadband networks by protecting the virtuous
cycle that drives innovation, user adoption and infrastructure
investment
b. Not compelling common carriage, just acknowledging what the
underlying technology has always been doing and designating
that as such there are certain responsibilities
i. Identifies, as common carriage, the services that broadband
internet access service providers already offer in a manner
that, under communications act, carries with it certain
statutory duties
c. ***275*** of internet report

1. Standard of review
Trigger: content-based or content-neutral? For first amendment
o laws that by their terms distinguish favored speech from
disfavored speech on the basis of the ideas or views expressed
are content based.
o Neutral: "laws that confer benefits or impose burdens on
speech without reference to the ideas or views expressed are
in most instances content neutral" Turner Broadcasting
System, Inc. v. Fcc, 512 U.S. 622, 643 (1994)
Print: Miami Herald (natural monopoly scarcity)will not
interfere with editorial choices
Broadcast:
Scarcity of e-m waves and interference: NBC and
Red Lion
Surprise Pacifica
o Pervasive presence
o Uniquely accessible to kids
Telephony and Cable both receive strict-scrutiny
No surprise: Sable
Dial a porn regulations (highly regulated)
Cable:
Less surprise
o Customers pull content by paying (Sable ,
Playboy)
Better filtering techniques
Cruz v. Ferre total ban not acceptable
Playboy: legal technique to opt-out was better
(less-restrictive option) than the signal bleed time
regulation
Internet (BIAS)
ASK: [a]n intent to convey a particularized
message was present and [whether] the likelihood
was great that the message would be understood
by those who viewed it.
When broadband providers offer broadband
Internet access services, they act as conduits for
the speech of others, not as speakers themselves.
o Strict
Ends: Compelling interest
Protecting kids
Availability of diverse and antagonist voices
Competition in the market

Access to free broadband programming


Access to local programming that is responsive to
local communitys tastes, needs, events,
emergencies
Narrowly tailored: When considering whether a law is
narrowly tailored, the court will consider whether it is
over-inclusive, under-inclusive, and if a less-restrictive
means (that is at least as effective) is available
(underlying cost-benefit analysis)
Over-inclusive: burdens too much speech
o Too much cost (in terms of burdening adult
speech)
Under inclusive: doesnt actually solve (all) the
harm (addressing the compelling interest)
o Not that much benefit (in terms of children
exposure)
Less restrictive alternative
o More narrowly defined statute
o Technological improvements
Even when their implementation is
optional (Playboy) because Congress
can act to encourage
o ALWAYS trade-offs, so balancing to some
extent
o Targeted blocking is less restrictive than
banning (govt cannot ban when targeted
blocking is an option)
o Intermediate
For economic measures that only incidentally affect
speech
Rate regulation
Important or Substantial Interest:
Diversity: Promoting the widespread dissemination
of information from a multiplicity of sources or
diverse and antagonistic sources
Important government interest: encouraging
deployment on reasonable and timely basis of
advanced communications capability AND
promotion of continued development of internet
(1) preserve benefits of free over air local
broadcast television, (2) promote widespread
dissemination of information from a multiplicity of
sources; (3) promote fair competition in market for
TV programming (Turner 94)

No greater than essential necessary to further OR


Does it burden substantially more speech than is
necessary?
Not too burdensome when the restriction is only
imposed when there is a demonstrated need
o i.e. when market failure is corrected,
restriction goes away; if no one asks to use
commercial access lease then operators may
use the capacity for themselves (TWC v.
FCC)
APA Issue: arbitrary and capricious
o Irrational
o Lack of evidence
o Where important factor is not considered or misconstrued

Industry Review
A. Paper: presumption against regulationhigh first amendment
protection
a. Miami Herald
B. Telephony :
a. Not speakingtelephone company does not curate the
content coming across its wires and therefore is not speaking
b. Affirmative Delegation of Power:
i. 47 USC 303: FCC empowered to manage e-m frequency
allocation to further the public interest, convenience, or
necessity
ii. General standard for granting a license by assigning
frequencies to individual stations:
c. Entry Regulation
i. Wireline, no scarcity, but high cost of entry because you
must establish infrastructure (lay down wires)
ii. Premised on use of government property
1. Governments interest in public property as part of
public trust NW Tel. v. St. Charles (1907):
upholding local districting plan
iii. Common Carrier: transmission that is not changed
1. Provided to entire public so requires regulation to
ensure public interest/good use of
resource/prevent waste
iv. Natural Monopoly
1. High costs

2. Federal government wants to promote competition


in local loop and will not allow local commission to
insist on monopoly
v. By:
1. Interstate vs. intrastate
a. Title I emphasizes interstate and foreign
communications
2. Lots of Federal preemption since 1996
a. Federal government wants to increase
competition in local loop and no local
commission could insist on a monopoly
vi. How:
1. Fed heavily deregulated
2. 214 transfer of common carrier licenses public
convenience and necessity
a. this is how FCC exerts authority over
mergers (in combination with consolidation
rules)
d. Pricing
i. There are end-user rates and there are network to
network access rates (like AT&T breakup info)
e. Bad content
i. Telephony provider is not speaking
ii. Dial-a-porn providers
1. Indecent for adults, but not constitutionally
obscene therefore cannot do a total ban
2. Pacifica does not apply
iii. Cong regulates by requiring reverse blocking if feasible
and telecom collects money and FCC safe harbor
1. This is constitutional (distinct from treatment of
internetwhy?)
f. Access
i. Government forced breakup of bottleneck between local
and long-distance preventing total vertical integration
1. AT&Ts wrongs:
a. Discriminatory access
b. Predatory pricing through cross-subsidization
C. Broadcasting
a. Regulate entry because
i. NBC v. US (43): FCC may consider whether license is in
the public interest give n that the number of radio
channels limited by natural factors
1. Chain broadcasting rules
2. Scarcity/public good
3. Interference

4. Not just traffic cop regulating lanes but can


regulate when in the public interest, convenience
or necessity
a. First Amendment protects speakers AND
listeners: public interest to be served under
the Communications act is the interest of the
listening public in the larger and more
effective use of radio [47 USC 303(g)]
ii. Red Lion (69)
1. Fairness doctrine
2. Listeners interest is paramount
a. Not just the right of the speaker
3. Scarcity
a. Not recognizing economics-induced scarcity
(Miami Herald)
i. Medium matters
b. How
i. Public interest standard
1. Initial 301, 309(a)
a. 47 USC 301:
i. Spectrum owned by US
ii. No one may broadcast without license
from federal government
iii. License does not create property
rights, it is merely permission to use
the spectrum at a particular frequency,
geographical area, and power level
iv. For radio communication or
transmission of energy: maintain
control of US over radio transmissions,
to provide to persons under licenses
granted by federal authorityno
license brings any right beyond its
terms, may not be used unless
licensed
b. 47 USC 309: General standard for reviewing
applications is whether public interest,
convenience or necessity will be served
2. Renewal 309(k)
a. This is never really an issue so comparative
hearings dont really occur
b. Public interest, convenience and necessity
have been served and no violations of
3. Transfer 310(d)

a. Same standard as initial applicant, cannot


consider anyone other than current
transferee applicant
c. Pricing
i. Free to viewers
ii. Charge for ads
1. Little regulation of ads
2. Political advertising rates 315
iii. Charge cable operators/MVPDs
1. Retransmission consent
2. Private negotiated fees with cable operators and
MVPDs
d. Bad content
i. Pacifica (1978) Upheld black mark in station files
1. Unique pervasiveness
2. Kid accessible
ii. 1992 Cong Requires time channeling
1. Act III (D.C. Cir. 1995) upheld time channeling (very
deferential)
iii. 1996 VChip rating system
iv. Fox v. FCC (2009) FCC changed policy on fleeting
expletives
1. Not arbitrary and capricious because it was explicit
about changing its mind and provided reasonable
policy goal
v. Fox v. FCC (2012)
1. Void for vagueness because it violates due process
(5th amendment) people dont know how to
conform to the standard and therefore avoid
breaking the law
e. Good content
i. Trust marketstory of deregulation because of
competition
ii. Resistance to market
1. Money: funding for NPR and PBS
2. Time
a. Kid Vid: play educational programming at
times kids will actually be watching
b. 1996 FCC Order (slightly more strict about
content but still just guidelines)
3. Channelsspace
a. Must Carry
i. Turner (94)
1. 534, 535: must carry provisions
applied to cable operators

2. flip side of retransmission


consent
b. Educational. Informational programming set
aside
i. Time Warner (D.C. Cir. 1996) capacity
set aside
1. 335(b)(1)
2. Content neutral
3. Not too burdensome because if
no one asks for capacity you can
use it yourself
f. Consolidation
i. Public interest
1. Competition
2. Diversity
a. Diverse and antagonistic views
b. Viewpoints counted by proxy of outlet source
3. Localism
ii. Limiting ownership
1. National caps existed since 1941
2. 1996 Act:
a. No station cap,
b. Directed FCC to set audience cap at 35% (of
national audience) for owned operated
stations
3. 1998 biennial review broadcast ownership regs to
decide if competition is sufficient to render them
unnecessary
a. Fox (DC 2002)
i. Fails APA because goals are not related
to local diversity because they are
national rules and no evidence of harm
to competition
b. Media Ownership order
i. FCC sets at 45% to appease DC Circuit
reset at 39%
1. But in reality contractual
affiliates allow them to reach
100%
iii. Promoting ownership (promotes diversity of viewpoints)
1. Local
a. TV
i. Top 4 ranked/remaining 8 voices
adopted
b. Radio
i. 1996 Act directed FCC to raise limits

2. Goliath
a. FCC tried to convert cross ownership bars
CML
i. Diversity index
ii. 3 markets
iii. Struck down in Prometheus (3rd Cir.
2004)
1. Irrational intermedia weighting
2. Intramedia weighting based on
equal shares assumption
b. NBCO
i. Prometheus II (3rd 2011): failed under
APA not adequate notice and comment
g. Access
i. Fairness doctrine
ii. Network dominance
1. Schurz Communications, Inc. v. FCC, 982 F.2d 1043
(7th Cir.1992), is distinguishable. There, the
Seventh Circuit criticized the Federal
Communications Commission for "throwing up [its]
hands and splitting the difference," rather than
assessing who had the stronger case, when it
enacted new rules governing television syndication
rights. Id. at 1050. The court concluded that the
agency had overlooked key evidence and ignored
arguments that it previously had accepted, id.,
while the Commission here considered the
evidence before it.
a. Rule had forbidden a network to syndicate
(license) programs produced by the network
for rebroadcast by independent TV stations
or to purchase syndication rights to
programs that it obtained from outside
producers or otherwise to obtain a financial
stake in such programs
D. Cable
a. Speaking
b. Entry
i. Wireline, not wireless so no spectrum scarcity. But public
property
1. the cable medium may depend for its very
existence upon express permission from local
governing authorities. See generally Community
Communications Co. v. Boulder, 660 F.2d 1370,
1377-1378 (CA10 1981).
ii. Why:

iii.

iv.
c. Rate
i.

1. Medium scarcity:
a. Physical
i. Physical disruption
ii. Pole scarcity
iii. Rights of way
b. Economicnatural monopoly
i. Insufficient on its own (Miami Herald)
1. Distinguish because of the use of
public property in addition
ii. CCC v. Boulder (10th Cir. 1981)
upholding districting plan in
preliminary injunction posture
iii. Preferred (9th Cir 1994) cannot grant
one license in particular area
1. . Through "original programming
or by exercising editorial
discretion over which stations or
programs to include in its
repertoire," cable programmers
and operators "see[k] to
communicate messages on a
wide variety of topics and in a
wide variety of formats." Los
Angeles v. Preferred
Communications, Inc., 476 U.S.
488, 494 (1986)
Who
1. State
a. Determines franchising authority
b. Franchising authority registered with FCC
c. Increasingly state level
2. Federal
a. Sets outer bounds of franchising terms (5%
fee)
b. Also, dont drag your feet
How
1. Merit
2. Monopolies not permitted 541(a)
regulation
Setting
1. Repealed, now only basic tier if no effective
competition
a. Competition unlikely when so expensive to
lay own cables

d.

e.
f.

g.

b. Now mainly comes through intermodal


competition (video provided over telephone
lines
2. Price-cap methodology
a. Stick the price
b. Let it go up and its not their fault: inflation,
exogenous taxes
c. Let it go down if the technology becomes
cheaper
ii. Challenging
1. APA rationality
2. First amendments but not successful
a. TW (DC 95): intermediate scrutiny
b. Selling it cheap means that the quality will
decrease, but the price can go up if the
creation of content actually becomes more
expensive
Bad content
i. 18 USC broadcasting obscene language does not apply
ii. 559 obscene programming always illegal
iii. Indecency
1. Cruz v. Ferre (11th 1985)
a. Strikes down citys total ban (Sable)
2. Playboy (OO)
a. Scrambling was not narrowly tailored
because better technique (law or
technology)
b. 561 Scrambling opt in unconstitutional
because 560 opt out was available (sufficient
with educational info)
Good content
i. Must carry broadcast signals (Turner 94)
ii. Retransmission consent 325 (b)
Consolidation
i. 2008: MSOs (multiple system operators)limited to 30%
of all multichannel video programming subscribers
nationwide
1. MSOs control bottleneck between program
produced channel and cable system
ii. 2009 DC Circuit vacates (Comcast)
1. Now there is no such rule under APA (no
reasonable rationale) because
Access
i. Must Carry
1. (Turner 94)
ii. PEG Channels

1.
iii. Commercial leased access
1. TWC v. FCC (DC Cir. 1996)
a. Intermediate scrutiny (on authority of Tuner
94), this is a designation of space that
promotes diverse and antagonistic voices, if
no one using it then dont have to set it aside
i. Private parties (whether individuals
and/or commercial ventures, i.e. porn
channels)
ii. Important/substantial because
Diversity: promoting widespread
dissemination from a multiplicity of
sources
iii. Narrowly tailored:
iv. No greater than essential to further the
interest
v. Does it burden substantially more
speech
h. Classification
i. First addressed under Ancillary Jurisdiction doctrine
1. Southwest
a. Ancillary JX doctrine:
i. Wire or radio? 152
ii. Reasonably ancillary to effective
performance of delegated
responsibilities?
1. 154(i) ancillary authority
2. cf Congress necessary and
proper clause
2. Midwest Video 1 (1972)
a. Local programming origination requirement
3. Midwest Video II (early form of leased access rules
struck down) forcing common carriage like
obligations
ii. Title VI 1984 codifies cable
1. Provides video programming that is selected by
user
E. Mobile
a. 332 Regulates mobile services
i. (c)(3) preempts states on entry and rates
ii. Exception: (c)(7)(a) preserves local zoning
1. (c)(7)(B) limits on zoning:
a. (i) may not discriminate

b. (ii) shall not prohibit or have the effect of


prohibiting the provision of personal wireless
services
F. Internet
a. Power
i. Technology: mid-1990s
ii. Legal: no title covering internet when it originated
b. Entry
i. Becoming an ISP and entering the market: No entry regs
per se
1. As an information service you dont need any
permission
ii. Laying down pipes requires permission:
1. Previously phone or cable companies that already
had permission for laying pipes from state or
intra-state, franchises (from local franchising
authority, now mainly at state level)
a. Access to conduits allowed them to update
iii. Now as a telecomm service the FCC has decided to
forbear on entry and rate regulations
1. Only requirement is net neutrality:
a. No throttling
b. No bottleneck
c. No pay for play
c. Pricing
i. No direct regulation of pricing or rate-making
ii. Implicit subsidization
1. Initial classification (especially for dial-up): not
treated as telecomm so did not have to pay per
minute access charges (like MCI)
a. Instead like business consumer
b. Given an exemption from access charges
and Universal Service Fund (which was
meant to make telephone service more
accessible)
2. Aggressive application of 230 immunity as part of
industrial policy when internet was rolled out to
protect it from liability in the early stages to allow
it to develop
iii. Protected from regulations, regulatory taxes, allowed to
grow (intermediary, defamation liability or litigation
generally) ISPs protected
d. Content
i. Communications decency act
1. Struck down in Reno v. ACLU: analogy between
communications media

a. Internet treated like a book (oldest and


newest media given full protection)
broadcast is crap
b. Cable in the middle
c. Telephones are not speaking
2. Rewritten but still struck down in Ashcroft (filters
can be applied that are better tailored or at least
sufficient)
a. Consider benefits and costs between children
not getting material and adults still having
access
b. Filters are better strategy
ii. Regulation of pornography on internet upheld, driven by
money (libraries allowed to take federal money and still
fed can insist on full filtering technology on all
computers)
1. Not an unconstitutional condition
2. Spending power: this is a subsidy, not a penalty
a. How necessary is the thing being offered
iii. Defamation: section 230
1. If you edit, you will be called a publisher; if
publisherliable (essentially treated as author in
terms of liability)
a. Distinction between author, publisher and
distributor
2. Prodigy: if you edit, or hold yourself out to edit,
then you will be treated like a publisher and be
held liable
a. Creates incentives not to edit
3. 230 is very broad: 230(c)(1) no provider or user of
computer service will be treated as an author or
publisheranother information/content
provider
a. Expanded:
i. Zeran (4th Cir. 97): AOL not liable for
distributor based liability even though.
Knowledge of harm to businesses and
third partiesimmunized publisher and
distributor liability
1. Distributors have a conditional
privilege: must have a reason to
know (unless on notice of
defamation, no duty to check in
advance)
2. Shall not be deemed publisher or
speaker

3. Would have created incentives to


preemptively take things down
upon any notice (if you take
down and your wrong you piss
off a customer and lose business)
even though distributor is not
included in the statute
ii. Drudge (DDC 98): even more
knowledge as AOL was holding drudge
out for his services
1. Was drudge an agent of AOL:
principal/agency analysis
a. Employee vs. independent
contractor
2. Drudge was not an employee,
simply a contractual
(independent) relationship that
would not have found a
principal/agent
b. Some contraction
i. Craigslist: how to read (c)(1) and (c)(2)
and whether they do things differently;
in order for both to have meaning they
must do different work
1. No one will be liable for editing
to keep smut off (what had been
happening in prodigy)
2. Minimalist: Some want to read
that its only an immunity if
youre editing to keep smut off
3. Maximum view of liability: if
someone else wrote it, youre not
liable
4. Middle of the road: if someone is
editing to take smut off, then c2
gives immunity
5. If the cause of action requires
publication as an element, then
c1 negates that element (file
motion to dismiss)
a. Encourages artful pleading
(use negligence claim to
avoid publication)
ii. Roommate: what counts as content
produced by another information
provider

1. If you force or encourage


someone to create content that
is illegal or facilitates illegal
conduct in search engine sort of
way then you may be a coauthor
2. You cant opt-out of providing
information (prompts that you
cant exit)
3. Samples: adult-match
4. The more mandatory, the less
another author
5. Co-Author (creation or
development, in whole or part, of
info): no immunity
6. Mandatory, multiple choice, info
contributes to illegality, material
change, specific (targeted) tool,
designed to be naughty
7. Common carrier
8. Optional info, essay, info does
not contribute to illegality, de
minimis change, neutral
tool/service, designed to be nice
9. Extent of prompting and editing
material (character/meaning of
info)encourage or induce
(soliciting and developing
content)
10.
Counters internet
exceptionalism and internet is no
longer a baby that needs special
liability protection (to encourage
innovation/use)
e. Consolidation
i. Biggest media conglomerates also have fast pipes: must
be consistent with FCC approval process (rather than
strict laws regulating national cap on how many
households you may deliver internet broadband access
to)
1. Transfer pipes and they are telecommunication
lines, requires approval from section 214 (not
cable)
2. Transfer spectrum licenses then you need
consistency with the public interest under section
310(b)

ii. I.e. Comcast/time warner deal: these are not just cable
franchises (only would ave required permission from
state franchising authorities for cable)
1. Huge amount of spectrum, which is hard to get
(therefore hard to transfer because of the public
interest obligations attached)
f. Access:
i. BIAS (broadband internet access service, as distinct from
dial-up) scope
1. Prior distinctions between fixed and mobileno
longer this distinction as we get more things from
mobile
a. Probably will be litigated: claim that they
dont have capacity (4g)
ii. BIAS Providers have these bright-line (robust) rules:
anxious about private censorship
1. No blocking so long as lawful site
2. No slowing down, which is an indirect way of
blocking
3. No paid prioritization (pay-to-play): cannot create a
multi-sided market (money from consumers and
websites)
a. Speeding up the last-mile
b. Likely will be litigated
iii. Standard:
1. No unreasonable interference or unreasonable
disadvantage to consumers or edge providers
iv. Excluded:
1. Interconnection: products not given to endconsumers
2. Specialized services
g. Classification
i. 1995-2005: rise of information service
1. 1997-1998: dial-up internet= information service
a. not IXC (Access Charge Reform Order 97)
b. does not have to pay into USFUniversal
Service Order (98)
2. 2002: FCC Declaratory ruling
a. not cable service
b. not telecomm
c. all info service because it is integrated,
totally bundled together and what the
customer is being offered is an info service
3. 2005
a. Brand X (05)
i. Affirming FCC

ii. Chevron deference to FCC


interpretation (ambiguous enough
what is offered)
1. 153(46): telecommunication
serviceThe term
telecommunications service
means the offering of
telecommunications for a fee
directly to the public, or to such
classes of users as to be
effectively available directly to
the public, regardless of the
facilities used.
b. DSL= information service
c. 2006: powerline = information service
ii. 2005-2010
1. Classification as info service means FCC has no
affirmative grant of power (to require net
neutrality)
a. Lack power to punish Comcast for
suppressing bit torrent packets (Comcast
DCCir 10)
iii. 2010-2015
1. New attempted rule-making 2010
2. Verizon v. FCC (DC 2014)
a. Yes affirmative power, but negative
constraint
i. Affirmative power given interpretation
of 96 Communications Act: ability to
make broadband 47 USC 513
b. Violates statutes by forcing common carriage
i. 47 USC 153(51)
1. "A telecommunications carrier
shall be treated as a common
carrier under this chapter only to
the extent that it is engaged in
providing telecommunications
services..."
2. Prevented cable service from
being regulated like telephony
ii. 332(c)(2):
1. "A person engaged in the
provision of a service that is a
private mobile service shall not,
insofar as such person is so
engaged, be treated as a

common carrier for any purpose


under this [Act]"
2. mobile Internet access was
classified earlier as private
mobile service
3. Mobile data is an info service so
it cannot be called the same as
mobile voice services
(commercial mobile radio service
voice is telecomm service)
a. Tried to call it a private
radio service
b. But there is a statute that
if private mobile service
then we will not treat you
like a common carrier
3. 2015: fuck-it, internet is title II and we forebear
a. Just follow net neutrality and we wont
impose other regulations (forbearing to
impose full power)
4. Nascent:
a. VOIP:
i. Vonage order 2004:
1. States preempted from VOIP,
regardless of classification
a. Cannot disaggregate
interstate from intrastate
i. But you have to
register a 911
number
ii. So mobile that you
cant distinguish???
b. States becoming less and
less relevant
2. FCC will decide
a. Still being coy about
explicitly classifying
b. FCC has historically never
officially invoked title II
power; only used title I and
other power to regulate
VOIP
i. May now be less
hesitant to call it a
Title II service
b. IP TV:

i. Office consumer counsel v. AT&T (D.


Conn. 2007)its a cable service
(textual analysis)
1. Claims that they are
IP/interactive and therefore not a
cable service, failed
2. Statute doesnt care if youre an
internet service (it cares about
the type of service
a. One-way transmission of
vide programming with
minimal user interaction
h. Regulation
i. Used to be on local level of franchisingthen went to
states, now FCC is pre-empting because everything is
over the internet and therefore regulated at federal level
i. Ex. Netflix
i. Not a cable operator because it does not own the pipes
for transferring data
ii. Cable service:
j. Misc:
i. Rule making process
ii. Judicial challenge
I.

II.

Power
a. Legal
b. Technological
c. Economic
Entry
a. Justification: presumption of first amendment protection
i. BUT, not like books
b. Cable
i. Community Comm. (10th Cir. 1981)
1. Cable is not like broadcast
a. No e-m scarcitywireline
2. Cable is not like newspaper
a. Medium scarcity
i. Physical scarcity (for the conduit)
ii. Economic scarcity: high
b. Physical disruption
i. Preferred Comm (9th Cir. 1994)
construes physical disruption and
visible blight as the same thingbut is
it?
c. Visual blight
d. Property in the public trust

3. CCC: Entry regs upheld


c. Wireless: not speaking
i. 332 Mobile Services
ii. Metro PCS v. San Fran (9th 2005)
iii. Prime Co. v. City of Mequon (7th Cir. 2003)
d. Conceptual review
i. Physical
1. Disruption
2. Aesthetics
3. Limited supply
a. E-m supply
i. Red lion
b. Pole scarcity
4. Interference
ii. Economic
1. Monopoly
2. Natural monopoly
a. Regulate so as to ensure effective
competition
iii. Property In the public trust
1. Infrastructure
e. Choosing
i. Merit
1. Benefit public interest (public interest,
convenience and necessity)
a. Can have affirmative obligations
b. Unsponsored programs, ;local live programs,
local public issues, no excessive advertising
III. Pricing
a. Market should dictate, but when there is a market failure and a
lack of effective competition the FCC may set prices
i. BECAUSE history of exclusive franchise effects
(monopoly is result of govt involvement) and
gatekeeper function over transportation element allows
cable to bottleneck competitors (where operator owns
and control facility)
b. How to challenge price settings:
i. Arbitrary and capricious standard of APA review
A. Ratemaking
a. Setting Prices
i. If competitionno need to set prices
ii. There is typically a presumption that wireline industries
are natural monopolies
1. Governmental response was just to bless the first actor and
regulate prices and quality
iii. AT&T

a.
b.

a.

b.

1. 1934 1967: continuing surveillance


2. 1967 1990:
1982-84 (break up of AT&T) / rate of return regulation
R=I*r+C
i. If r is set higher than it should be then
we will see Averch-Johnson theory
(gold plated walls)
ii. If there is dollar for dollar return, then
no incentive to be cost efficienct (xinefficiency)
3. 1990-now
Price cap regulation
i. Set cap
1. Allow increases (inflation / taxes)
2. Allow decreases
a. Productivity index certain industries
that get more productive at an
accelerated rate and its not really
about a particular company, but the
entire industry
4. Setting Prices in Cable TV
a. Federal preemption in 1984 prevented rate-regulating
if there was effective competitiondefined by FCC
to include almost everyone (deregulated 97% of cable
system and 3 over the air broadcast tv stations)
prices jumped
b. 1992-now:
i. Pay-per view/per channel: not regulated
ii. Cable programming: expired 19999
iii. Re-regulation of basic tier:
1. Presumption that there is no effective
competition, but 47 USC 543(a) allows to
get out of rate regulation if you can
demonstrate there is by showing:
a. Low penetration
b. Overbuild (mostly driven by dbs)
c. Municipal system
d. Open video systems (added in
1996)
Challenging Prices
i. potential arguments
1. statutory argument
a. no power to regulate FCC lacks affirmative grant of
power
b. acted contrary to statute FCC disobeyed Congress
2. APA

a. arbitrary and capricious review


i. Overton (1971) court must review on bases of
whole administrative record that was before the
agency at the time decision madedid they
follow necessary procedural requirements?
1. Determine whether the Secretary acted
within the scope of his authority, whether
his decision was within the small range of
available choices, and whether he could
have reasonably believed that there were
no feasible alternatives based on the
evidence
i. State Farm (1983)
2. No First Amendment issue in telephone
regulation but there is an APA issue
a. Examples of aggressive judicial
review (CB169): you see judges
going into in-depth analysis
b. arbitrary and capricious is meant
to be very deferential to the agency
but judges sometimes substitute
their judgment for that of the
agency
3. Constitutional
a. First Amendment: blah, blah
b. Takings Clause: blah, blah
i. Regulatory takings arguments are difficult to
make because not
ii. Time Warner Entertainment Co. L.P. v. FCC, 56 F.3d 151
(D.C. Cir. 1995); p. 178
"Neither the "desired" nor the "intended effect" of
the cable rate regulations is to encourage some
types of speech while discouraging others." Time
Warner Entertainment Co., L.P. v. F.C.C., 56 F.3d
151, 182 (1995)
Facts
Issue Presented: What standard of review should be used to analyze
government regulation of prices in cable?
Holding: Intermediate scrutiny
Reasoning:
The first amendment prohibits some but not all
economic regulations affecting speech. Rational
basis might be the test in some cases but we know
that cable operators are entitled to First
Amendment protection and that laws aimed at the
press or elements thereof are always subject to at

least some form of heighted First Amendment


scrutiny, Turner.
Cable operators say that the level here should be
strict as in Turner and the government says it
should be intermediate.
Content-based regulation might get
strict scrutiny but here, the regulation
is content-neutral.
Cable operators argue that even is the trying to
regulate by the nature of the programming, the
regulation might still affect the content of
programs transmitted.
Neither the desired nor the
intended effect of the cable rate
regulations is to encourage some types
of speech while discouraging others.
Court argues that the going-forward
rules which give cable operators
recovery for expenses for newly added
channels
Anyway, whatever impact these
regulations have on content, its less
than Turner and Turner used
intermediate scrutiny.
The cable operators have a point that the rate
regulation would not fly in the newspaper business
but
the monopolies cable operators enjoy
are the result from the franchises they
were granted by local authorities
while newspapers may operate
monopolies in some localities, the
government didnt hand them the keys
to the kingdom
newspaper also cannot block readers
access to competing publications a
cable operators is a gatekeeper of the
content that comes to subscriber
because cable operator owns and
controls the transmission facility
(gatekeepers)
Intermediate Scrutiny should apply:
substantial / important governmental
interest: preventing monopoly pricing

[no greater than essential to further


interest, U.S. v. OBrien (1968)]
Does it burden substantially more
speech than is necessary: rate
regulations is triggered by the absence
of effective competition and ceases
when effective competition emerges
and operators and invoke the cost-ofservice option when necessary [Ward
v Rock Against Racism (1989)]
Medium Warp: if compared to newspaper, this
might turn out differently
If there was a 25 cent cap on the NYT,
the court accepts arguendo that this
would be unconstitutional
o

B. Subsidizing
1. Bad Content
A. Flow and Filter
a. Broadcast
i. FCC v. Pacifica, 418 U.S. 726 (1978); p. 205
Facts:
Issue Presented:
Holding:
Language of the broadcast of indecent and thus,
prohibited by 18 U.S.C. 1464.
obscenity: three-prong Miller test
established in 1973:
o whether the average person, applying
contemporary community standards
would find that the work as a whole
caters to only a prurient interest [local
community definition]
o whether the work depicts or describes,
in a patently offensive way, sexual
conduct specifically defined by the
applicable state law; and [local
community definition]
o whether the work, taken as a whole,
lacks serious literary, artistic, political,
or scientific value. [U.S. wide reasonable
person]
Add the statute
indecency: language or material that,
in context, depicts or describes, in

terms patently offensive as measured


by contemporary community standards
for the broadcast medium, sexual or
excretory activities and organs
[community standard basis]
What is the difference between obscenity and
indecency?
By definition obscenity lacks merit
Indecency doesnt have to have sexual
conduct

Reasoning:

Initial Questions:
Content-Neutral or Content-Based
Medium Warp: formally the court is
using strict scrutiny but its kind of
strict scrutiny-lite
Broadcast has the most limited First Amendment
protections of all media, which is why they have to
put up with licensing regulation and why
something that might not fly in newspapers is a-ok
in broadcast, cf. Miami Herald vs. Red Lion.
Why?
o Broadcast is uniquely pervasive in
peoples lives. The First Amendment
considerations intersect with privacy
interests
o Broadcast is uniquely accessible to
children
airwaves are uniquely available
to everyone, unpredictable[you
tune in and out], early afternoon,
dont need to be able to read,
rights of the broadcaster versus
parenting of recipient
Ends Analysis:
Protecting kids
Helping parents to police kids
Means Analysis:
Emphasis narrowness of ruling
Adults can buy indecent materials
Powell, Blackmun concurrence
We are trying to protect unsupervised
children from getting access to the
broadcast. In some contexts we can do

that easily in print and recorded


materials, we can close of access to
children but not adults thats not
possible with broadcast
Second, broadcast comes into your
home!!
On the facts, this is totally legit.
Brennan, Marshall dissent

ii. Action for Childrens Television v. FCC, 58 F.3d 654 (D.C.


Cir. 1995); p. 215
Facts:
Issue Presented:
Holding:
Reasoning:
Standard of Review
Content-Based or Content Neutral
Medium Warp
o While we apply strict scrutiny to regulations
of this kind regardless of the medium
affected by them, our assessmentmust
necessarily rake into account the unique
context of the broadcast; p. 216.
Court buys the Pacifica warp idea and determined
that the court is not in the position of doublechecking the ends / means analysis.
iii. FCC v. Fox Television Station, Inc., 129 S. Ct. 1800
(2009); p. 226: FCCs retention of discretion is not
arbitrary or capricious
IV.

Bad Content
a. Flow and Filter
i. Basic tracks of first amendment scrutinyis it content
based or content-neutral?
1. Intermediate
2. Strict
3. Medium warp
a. FCC v. Pacifica: narrow tailoring, court was
rather deferentialtiming component to
prevent children in the audience
b. Act III
ii. Broadcast:
1. Pacifica factors
a. Unique pervasiveness (intrudes the home
without warning, possibility of a first blow)

V.
VI.
VII.

b. Accessible to children
iii. Telephony
1. Sable dial-a-porn: no medium-warp, not narrowly
tailored because it is a total ban on indecent
speech over-inclusive
a. Ends: protecting children is a compelling
interest
b. Means: over-inclusive to ban both children
and adults from accessing content
iv. Cable
1. Cruz v. Ferre
2. Playboy
v. Internet
1. Technology
a. Computers, lines and routers
b. Use protocol to talk to one another, big
pieces of data broken down in small pieces
(packaging)
2. No medium warp
a. Not pervasiveno unfair surprise
b. Treated like booksstrict scrutiny
b. Defamation
i. If author is liable, publisher is liable
ii. If distributor, must have knowledge or reason to know of
defamatory character to be subject to liability
1. No duty to monitor
iii. Pre-CDA
1. If publisherliable (if speaker is liable)
iv. Post-CDA
1. Treatment of publisher or speaker. No provider or
user of an interactive computer service shall be
treated as a publisher
a. Zeran: definition of publisher must also
include distributor liability (otherwise de
facto creates a notice and takedown regime
because any notice creates actual
knowledge for liability)
2. Where publishing is essential element of cause
of action, 230(c)(1) immunity applies for ISP
Good Content
Consolidation
Access
a. Issue of bottleneckwant access to things that cannot be
replicated

1. Standard of review
Trigger: content-based or content-neutral? For first amendment
o laws that by their terms distinguish favored speech from
disfavored speech on the basis of the ideas or views expressed
are content based.
o Neutral: "laws that confer benefits or impose burdens on
speech without reference to the ideas or views expressed are
in most instances content neutral" Turner Broadcasting
System, Inc. v. Fcc, 512 U.S. 622, 643 (1994)
Print: Miami Herald (natural monopoly scarcity)will not
interfere with editorial choices
Broadcast:
Scarcity of e-m waves and interference: NBC and
Red Lion
Surprise Pacifica
o Pervasive presence
o Uniquely accessible to kids
Telephony and Cable both receive strict-scrutiny
No surprise: Sable
Dial a porn regulations (highly regulated)
Cable:
Less surprise
o Customers pull content by paying (Sable ,
Playboy)
Better filtering techniques
Cruz v. Ferre total ban not acceptable
Playboy: legal technique to opt-out was better
(less-restrictive option) than the signal bleed time
regulation
Internet (BIAS)
ASK: [a]n intent to convey a particularized
message was present and [whether] the likelihood
was great that the message would be understood
by those who viewed it.
When broadband providers offer broadband
Internet access services, they act as conduits for
the speech of others, not as speakers themselves.
o Strict
Ends: Compelling interest
Protecting kids
Availability of diverse and antagonist voices
Competition in the market
Access to free broadband programming

Access to local programming that is responsive to


local communitys tastes, needs, events,
emergencies
Narrowly tailored: When considering whether a law is
narrowly tailored, the court will consider whether it is
over-inclusive, under-inclusive, and if a less-restrictive
means (that is at least as effective) is available
(underlying cost-benefit analysis)
Over-inclusive: burdens too much speech
o Too much cost (in terms of burdening adult
speech)
Under inclusive: doesnt actually solve (all) the
harm (addressing the compelling interest)
o Not that much benefit (in terms of children
exposure)
Less restrictive alternative
o More narrowly defined statute
o Technological improvements
Even when their implementation is
optional (Playboy) because Congress
can act to encourage
o ALWAYS trade-offs, so balancing to some
extent
o Targeted blocking is less restrictive than
banning (govt cannot ban when targeted
blocking is an option)
o Intermediate
For economic measures that only incidentally affect
speech
Rate regulation
Important or Substantial Interest:
Diversity: Promoting the widespread dissemination
of information from a multiplicity of sources or
diverse and antagonistic sources
Important government interest: encouraging
deployment on reasonable and timely basis of
advanced communications capability AND
promotion of continued development of internet
(1) preserve benefits of free over air local
broadcast television, (2) promote widespread
dissemination of information from a multiplicity of
sources; (3) promote fair competition in market for
TV programming (Turner 94)

No greater than essential necessary to further OR


Does it burden substantially more speech than is
necessary?
Not too burdensome when the restriction is only
imposed when there is a demonstrated need
o i.e. when market failure is corrected,
restriction goes away; if no one asks to use
commercial access lease then operators may
use the capacity for themselves (TWC v.
FCC)
APA Issue: arbitrary and capricious
o Irrational
o Lack of evidence
o Where important factor is not considered or misconstrued

Consolidation
a. Rules
i. National consolidation:
1. Rules that limit the amount of national reach a
single firm can have
2. Measured by number of stations owned or
audience reached
ii. Local consolidation:
1. Rules that limit the number of stations that a single
firm can own in a local market, regardless of
national scope and size
iii. Cross-ownership
1. Rules that prohibit a firm that owns one kind of
media property from owning certain other kids,
typically within the same geographical location
Consolidation
Operationalize public interest standard through competition,
diversity and localismmust justify every 4 years (quadrennial
review)
o Diversity:
We care about viewpoint diversity (access to diverse and
antagonistic sources AP v. US 1945)
Proxy by way of ownership of outlet
Content: measure local news
FCC willing to entertain arguments that lifting the
rules and allowing growth will promote diversity by
increasing local news stations
o Competition:
o Localism
Local news also promotes localism

Can owned and operated stations pre-empt national


affiliates at a different rate
Mere affiliation, can
Current Law:
o National television multiple ownership rule
o dual network rule
o local television multiple ownership rule: limited duopoly
o Local radio ownership rule: 1996 act
o Radio television crossownership rule
o Newspaper broadcast crossownership rule
Mergers: case-by-case analysis
o Common Carrier Line transfers [214(a)]
o Transfer of spectrum licenses 310(d)
o Public interest analysis in the context of both:
1. would merger violate Communications Act or other
statute?
would merger violate FCC regulations?
would merger substantially frustrate implementation,
enforcement, or objectives of Communications Act?
merger produce public interest benefits?
Localism, diversity, competition (As discussed in
2003 Media Ownership Order)

B. Regulation objectives in public interest


a. Competition:
i. Product: viewers
ii. Geography
iii. Challenge:
1. Must have evidence that consolidation creates
undue market power with evidence of actual
adverse effect (FCC v. Fox)

b. Diversity: Promoting the widespread dissemination of


information from a multiplicity of sources or diverse and
antagonistic sources
i. Viewpoint
1. Local News
2. # of owners as proxy (outlet)
ii. Outlet
1. Different owners mean different perspectives
c. Localism
i. Responsive to needs and interests of their local
communities
Classification:
A. Cable TV
a. One way transmission to subscribers of video programming or
other programming service and subscriber interaction to select
programming
i. Provides video programming
ii. And subscriber interaction required for selection or use
1. Look at legislative history
b. Classification based on nature of service provided, not
technological transmissions (office of Consumer Counsel v.
AT&T)
c. Even VOD is still downstream selection of offered programming
and does not involve off-premises creation and retrieval of
category of information (that would render it an information
service)
B. Internet
a. Dial-Up: information service
i. Implicit subsidy that avoids regulatory taxes
1. No USF tax
2. No access charges (connecting local loops to long
distance)
b. Broadband
c. Not regulated because it would disserve the public interest as
these services lack monopoly characteristics that led to
regulation of common carrier services in the first place
C. VoIP
a. Computer-to-computer requires software and hardware to
transmit callsthis is not what internet providers are offering
to their customers as it requires individual initiative and
providers make no affirmative choice of designation-just send
packets but dont know what the packets contain therefore not
offering this service specifically to the public
b. Phone-to-phone IP telephony: virtual transmission path
between points on public switched telephone network over

packet switched IP networkwhere provider uses the same


system that is currently regulated its use puts a burden on
system and therefore reasonable to require similar access
charges
i. Provider holds itself out as providing voice telephony or
facsimile transmission service
ii. Does not require additional materials used to access
public switched telephone network
iii. Allows customers to call telephone numbers assigned in
accordance with North American Numbering Plan (uses
normal phone numbers)
iv. Transmits customer info without changing it
c. Easy cases
i. Online messaging service did not resemble everyday use
of PSTN or use normal phone numbersnot
telecommunication
ii. AT&T bypass: used telephone numbers and switch
networks but transferred long-distance over internet
then converted back to number suitable for PSTN
telecommunication
d. Vonage Petition
i. FCC JX to determine whether certain regulations apply to
DigitalVoice and other IP-enabled services (Vonage
Petition)
1. State cannot differentiate between intrastate and
interstate, all falls within FCC JX even when a
mixed service (federal pre-empts state
interference)
a. Lack of dependence on any geographically
defined location on either end
b. Subscribers could be anywhere but use a
state NANP number
2. Functionally similar to another all-distance service
which requires national regulation for uniformity
ii. Minnesotas statute undermines FCC policy goals
1. Requiring entry fees for new technologies stifles
innovation and therefore hurts competition, also
undermines new investment in internet which is
inconsistent with FCC goal of extending coverage
2. Preemption is consistent with internet policy
preventing interference with state or federal
regulation
iii. Ancillary JX extended to cover Vonage as a
telecommunication service for purposes of requiring it
pay USF
e. IPTV

i. Office of Consumer Counsel v. AT&T


1. Whether U-Verse is cable system
a. AT&T tries to distinguish based on
technological features
b. Court is more concerned with the service
provided (what is being offered to the
public/user experience), not the underlying
technology
2. U-Verse is a cable system because:
a. One way downstream programming selected
by Comcast and made available to the public
i. Not actually individually tailored
because there are only three tiers
b. Even though user can select programming
whose time is not preselected, does not
involve off-premises creation and retrieval of
category of information
3. Reason to get out of cable classification is to avoid
dealing with individual franchising authorities (at
city and county level), after losing attempted to
get national franchising, but instead got state by
state
a. Local franchising authority is now statebased
D. Definitions: Service depends on functional nature of the end-user
offering
a. Telecommunications are a form of transmission
i. End-to-end analysis: commission considers the
continuous path of communications at inception and end
point (does not divide at intermediate points)
ii. transmission, between or among points specified by the
user, of information of the users choosing, without
change in the form or content of the information as sent
and received. 153(43)
1. Telecommunication carriers provide
telecommunication services to the public for a fee
153(44)
a. Subject to Title II common carrier regulation
b. Information service: internet
i. Enables members to acquire information, stores member
information that is accessible to other members,
provides members with information that is then used to
interact with other members, no underlying geographic
correlation to physical transmission facilities, facilitates
two-way exchange of information/content/ideas

ii. offering of a capability for generally acquiring, storing,


transforming, processing, retrieving, utilizing, or making
available information via telecommunications 153(20).
c. Cable: 522
i. Cable provider: Person or group of persons providing
cable service via a cable system and who owns a
significant interest in such a cable system or who
otherwise controls or is responsible for the management
or operation of such a cable system
ii. Cable service: one way transmission to subscribers of
video programming or other programming service AND
(b) subscriber interaction if any in selection or use
iii. Classification based on nature of service provided, not
technological transmissions (office of Consumer Counsel
v. AT&T)
d. MVPD: multichannel video programming distributor
i. a person such as, but not limited to, a cable operator, a
multichannel multipoint distribution service, a direct
broadcast satellite service, or a television receive-only
satellite program distributor, who makes available for
purchase, by subscribers or customers, multiple
channels of video programming
1. Analysis for Classification
a. Is this just a minor variation of a known service?
i. Functional equivalence?
ii. Substitutability?
b. Does it belong to an existing family of regulated
communication services that fit under a current title?
c. Does it belong to those services that fall under generic grant of
FCC power under title I
d. Factors to consider:
i. Functionally equivalent to regulated service?
ii. Substitutability (affects competition)
iii. Interconnection with Public switched telephone network
(PSTN) (places burden on regulated medium) and use of
North American numbering plan (minor variation of
existing service)
iv. Network services that rely on some centralized server?
Or decentralized like peer-to-peer (require independent
hardware or software)

Turner Broad. v. FCC (Turner I), 512 U.S. 622, 656 (1994) (arguing that
monopoly power and cable architecture create bottlenecks and exclude
others from speaking);

Red Lion Broad. Co. v. FCC, 395 U.S. 367, 388-392, 392 (1969) (There is
no sanctuary in the First Amendment for unlimited private censorship
operating in a medium not open to all.).
Time Warner Entm't Co. v. FCC, 240 F.3d 1126, 1136, 1139 (D.C. Cir.
2001) (invalidating FCC's limits on vertical and horizontal integration of
cable carriers);
Comcast Cablevision, Inc. v. Broward County, 124 F. Supp. 2d 685, 694
(S.D. Fla. 2000) (holding that open access requirements for broadband
cable violate First Amendment rights of cable system owners)
Telephone companies have been viewed as conduits for the speech of
others, exercising no independent editorial function. They are regarded as
common carriers required to provide access to all. Broadcasters, cable
companies, and satellite companies, by contrast, have been treated as
hybrid enterprises. Because they provide programming and exercise
editorial judgment, they have been treated as speakers with free speech
rights. However, because they control key communications networks that
are not freely available to all, they have also been subject to structural
public-interest regulation.
Chevron analysis only applies when the statute is interpreted by the
agency charged with administering this statute.
Where a statute is ambiguous, Congress intended to delegate the
agency to exercise its discretion in application. Whether the statute is
ambiguous (or judicial interpretation does not foreclose as unambiguous)
and therefore congress delegated interpretation to commission?
1. Is statute ambiguous (on the issue that agency has asserted
interpretation)? OR does the judicial precedent hold that the
statute unambiguously forecloses the agencys interpretation and
that therefore there is no gap for the agency to fill?
2. If yes, deferential to agency interpretation, so long as it is
reasonable (appropriate even as to jurisdictional questions City of
Arlington v. FCC)
a. Assume congress intended to delegate the power (perhaps
because of expertise)
If FCC has determined that something is not a cable service (this is an
agency interpretation of a statutory definition)apply Chevron
If FCC has changed its mind, did it give legitimate justification for its
change in policy (does not require greater evidence of reasonable policy
choice)

1. Must provide reasoned explanation of its current (what it has


changed to) position
a. agencies are allowed to change their views, as long as they
explain transparently why they have done so (Kangs
supplement page 30)
b. it need not demonstrate to a courts satisfaction that the
reasons for the new policy are better than the reasons for the
old one . . . .877 Rather, it is sufficient that the new policy is
permissible under the statute, that there are good reasons for
it, and that the agency believes it to be better, which the
conscious change of course adequately indicates. (FCC v.
Fox)
Ancillary Jurisdiction: deciding whether FCC has power? Midwest Video
1. Is this (tele)communications at all? Interstate (or foreign) by wire or
radio?
2. Reasonably ancillary to
Fcc v. Verizon: 706-requires the Commission to conduct a regular inquiry
concerning the availability of advanced telecommunications capability. If
it finds that advanced telecommunications capability is [not] being
deployed to all Americans in a reasonable and timely fashion, it shall
take immediate action to accelerate deployment of such capability by
removing barriers to infrastructure investment and by promoting
competition in the telecommunications market. AND advanced
telecommunications capability includes broadband telecommunications
capability
Whether the Commission has demonstrated that the regulations fall
within the scope of its statutory grant of authorityChevron
analysis
o Yes , ancillary jurisdiction exists. Although FCC previously
waived 706 argument, it explicitly changed its mind
Did not violate the APA (not arbitrary and
capricious), because FCC acknowledged and
expressly disavowed previous position and
provided reasoned basis for its new position (in
light of congressional intent, history. Etc) therefore
change was not arbitrary and capricious.
Does the Commission's current understanding
of section 706(a)as a grant of regulatory authority
represent a reasonable interpretation of an
ambiguous statute? (Chevron)
o Within commissions general jurisdictional
scope (and limits)

o Consistent with user expectations given new


market studies
o the Commission has reasonably interpreted
section 706(b) to empower it to take steps to
accelerate broadband deployment if and
when it determines that such deployment is
not reasonable and timely.
o
Bundling information service together with transport
does not change it from being a telecom service (adding
enhanced services does not change the fact that what
consumers want and expect is a telecommunication
service)offers telecom
Transmitting IP packets from point A to point B
(location doesnt matter)
o Bundling with DNS, caching or back-up does
not alter this
Transmitter does not change/alter IP packets
o Does this help accomplish FCCs responsibilities, as understood
in 706?
its regulations protect and promote edge-provider
investment and development, which in turn drives enduser demand for more and better broadband
technologies, which in turn stimulates competition
among broadband providers to further invest in
broadband.
by preventing broadband providers from blocking or
discriminating against edge providers, the rules
encourage the deployment on a reasonable and timely
basis of advanced telecommunications capability to all
Americans, 47 U.S.C. 1302(a), and accelerate
deployment of such capability, id. 1302(b), by
removing barriers to infrastructure investment and
promoting competition,
disruption of edge-provider traffic creates barrier to
innovation that could stifle investment in internet and
limit competition
Defamation Law:
False and defamatory statement concerning an unprivileged publication
(intentional or negligent communication to any person who is not the
person defamed) to a third party where fault amounts to at least
negligence on part of publisher and actionable regardless of special harm
or special harm caused by publication
secondary publishers

Cubby v. CompuServe
Compuserve has no editorial control over publication (like a public library,
bookstore, etc) and its not feasible to examine every publication to check
for defamatory statementsno duty to monitor. Whether it knew or had
reason to know of alleged defamation
Stratton Oakmont v. Prodigy Services Co,
Distinct from Cubby because:
Represented itself to the public as controlling the content of its
computer bulletin boards
Implemented control through automatic software screening program
By using technology and manpower to delete notes on the bulletin board it
is making decisions as to content and this constitutes editorial control
therefore a publisher and not merely a distributor, created editorial board
that has the ability to monitor incoming posts and does devote manpower
to this task
Prodigys conscious choice to gain the benefits of editorial control opened
it to greater liability
Zeran v America Online
Varying degrees of liability for different types of publishersnoticed based
liability is not imposed
Blumenthal v Drudge
Congress provided immunity even where interactive service provider has
an active role in promoting and making content prepared by others
availablequid pro quo arrangement with service community conferred
immunity for tort liability as incentive to ISPs for self-policing
4.B.2.b (CB pp.331-54)
Chicago Lawyers Committee for Civil Rights v. Craigslist, Inc. 519 F. 3d 331
230(c)(1): online information system must not be treated as the publisher
or speaker of any information provided by someone else. But only in a
capacity as publisher could craigslist be liablecausation. Because
craigslist did not cause the discriminatory postings, but merely provided
the means by which they could be distributed, it will not be held liable.
Service provider and content provider because passively displays
content created entirely by third parties
Does not have the manpower or resources to filter content (no
capability)

Distinguish from Drudge because liability cannot simply be contingent on


role as distributor, but does not prevent causation analysis on other
grounds
Fair Housing Council of San Fernando Valley v. Roommates.com, 521 F. 3d
1157
Section 230 immunity applies only if interactive computer service
provider is not also an information content provider, which is defined
as someone responsible, in whole or part, for the creation or
development of the offending content
Service provider and content provider: content created itself, or
responsible for creating or developing, renders it content provider
(not passive)
Roommate posts questionnaire and makes profile with it; steer users
based on discriminatory criteria (search function)
o Court rejects. Development is not merely augmented content
generally but materially contributing to its alleged
unlawfulness
Basel v. smith: newspaper editor immune for posting a letter he
received
o An editors minor changes to the spelling, grammar and length
of third party content does not strip 230 immunity. None of the
changes contributed to the libelousness of the message, so it
does not add up to development
Only if it had not been specifically meant to go online
has he contributed to the defamation by making editorial
decision to include it
Carafano: website not liable for libelous content on its website even
where it passively published user-generated content and provided
neutral search tools
o because the search tools there were neutral and did not
enhance libelous harm, encourage defamation or make
defamation easier, not a developer of the content
o Distinct: roommates search tools create the means of
accomplishing discriminatory actions (taking advantage of
preferences)
FCC v. Turner
Not a content based restriction where distinction is made between
speakers (and manner in which they transmit their messages) rather
than message itselfgovt interest is preventing unfair competition
o Unless its manifest purpose is to regulate speech because of
the message conveys

Here, intent was to preserve access to free TV


programming for those who dont subscribe to cable
unrelated to content actually shown
Protecting noncable households from loss of
regular television broadcasting service due to
competition from cable systems, is an important
and substantial federal interest
o just because congress regulates content on broadcast
channels doesnt mean must-carry of these stations is used to
ensure these programs will be shown
Must-carry will not require cable carriers to alter their own messages
Cable is distinct from newspapers:
o Cable operator has much greater control over access to
relevant medium (transportation component)it can exclude
access to other speech
Just because regulation applies to one medium and not others (i.e.
only cable but not satellite) does not trigger strict scrutinyjustified
when based on special characteristic of medium being regulated.
o Here: bottleneck monopoly power and dangers this power
poses to viability of broadcast
o Broad based applying to all cable operators not just a few
(targeting a few speakers is more suspect)
Intermediate scrutiny: must demonstrate that recited harms are real,
not merely conjecture, and that the regulation will in fact alleviate
these harms in a direct and material way
o Important or substantial government interest
Here: (1) preserve benefits of free over air local
broadcast television, (2) promote widespread
dissemination of information from a multiplicity of
sources; (3) promote fair competition in market for TV
programming
Each is important
Ask: has government adequately shown the harm that is
in need of protections afforded by means?
o Incidental restriction is no greater than is essential to the
furtherance of that interest
Satisfied so long as the regulation promotes a
substantial government interest that would be achieved
less effectively absent the regulation (Ward)
Ask: does the adopted remedy burden substantially more
speech than is necessary to further the governments
legitimate interests?
Cable operator must give up capacity to carry broadcast stations

Congress found, in addition, that increased vertical integration in the


cable industry is making it even harder for broadcasters to secure
carriage on cable systems, because cable operators have a financial
incentive to favor their affiliated programmers
Congress found, in addition, that increased vertical integration in the
cable industry is making it even harder for broadcasters to secure
carriage on cable systems, because cable operators have a financial
incentive to favor their affiliated programmers
"Although the provisions interfere with cable operators' 512 U.S. 644
editorial discretion by compelling them to offer carriage to a certain
minimum number of broadcast stations, the extent of the
interference does not depend upon the content of the cable
operators' programming. The rules impose obligations upon all
operators," Turner Broadcasting System, Inc. v. Fcc, 512 U.S. 622,
643-44 (1994)
"The must-carry provisions also burden cable programmers by
reducing the number of channels for which they can compete. But,
again, this burden is unrelated to content, for it extends to all cable
programmers irrespective of the programming they choose to offer
viewers. " Turner Broadcasting System, Inc. v. Fcc, 512 U.S. 622, 645
(1994)

A multiple-system operator or multi-system operator (MSO) is an


operator of multiple cable or direct-broadcast satellite television systems.
A cable system in the United States, by Federal Communications
Commission (FCC) definition, is a facility serving a single community or a
distinct governmental entity, each with its own franchise agreement with
the cable company. Though in the strictest sense any cable company that
serves multiple communities is an MSO, the term today is usually reserved
for companies that own a large number of cable systems, such as
Cablevision, Charter Communications, Comcast, Cox Communications,
and Time Warner Cable in the United States
Retransmission consent is a provision of the 1992 United States Cable
Television Consumer Protection and Competition Act that
requires cable operators and other multichannel video programming
distributors (MVPDs) to obtain permission from broadcasters before
carrying their programming.
A broadcast station (or its affiliated/parent broadcast network) may
propose that the cable operator, such as Time Warner Cable, pay cash to
carry the station or ask for any other form of consideration, such as an
additional channel for supplementary programs. The cable operator may
also refuse the broadcaster's proposal, in which case the station may
refuse to allow the cable operator to retransmit its signal

America's Talking (now MSNBC), FX, and ESPN2 all originated through
retransmission consent deals in the early 1990s. Many PBS stations
received additional local channels. This was perceived by broadcasters as
a corrective to the "must carry" rules that mandated cable operators to
carry all significantly viewed local stations. Smaller, independent stations
could either decide to keep their must carry status or to enter into
negotiation with cable operators. Many opted to remain covered by must
carry.
Retransmission consent has drawn criticism from the cable operators
who distribute programming, and who thus must seek consent from the
broadcasters who directly pay for program content, and praise from
broadcasters whose permission to distribute must be sought.