The Telecommunications Act of 1996:  How It Failed, and How It Succeeded (But Not As Expected)
H. James Nelson......................................................................................................................................................... 1
The most difficult part of a telecommunications system is the “last mile”: the link from the central infrastructure to the end user.  In the late 20th century, this last mile was under the monopolistic control of the regional Bell Operating Companies. The Telecommunications Act of 1996 had, at its core, the requirement that monopoly be broken and the last mile be made available to other companies thus increasing competition, decreasing consumer cost, and increasing the range of services available.  Unfortunately, due to technical hurdles and bureaucratic red tape, this was never realized.  However, another provision of the Act inspired an explosion of technological innovation, bypassing the last mile and bringing about unprecedented growth in mobile phones, the Internet, digital cable, fiber, and other forms of communication.
This article describes the technology climate that existed prior to 1996 and the legislation that led up to the Telecommunications Act of 1996.  It continues with a description of the technological and bureaucratic hurdles that the competition had to deal with in order to enter the local market. The article ultimately concludes with a description of today’s technological landscape and how competition bypassed the BOC’s hurdles.  Articles Editor, Erin R. Doyle
 
“A New Telecom Act”─Remarks
Richard E. Wiley....................................................................................................................................................... 17
This article begins by taking you back to where the telecommunications industry and regulation stood a decade ago; explaining the rationale behind the structure of the 1996 Act; looking at what has changed over the past 10 years; and, finally, previewing what might lie ahead as Congress considers the possibility of yet another rewrite of our national communications legislation.
A decade ago, although convergence (that is, the use of the same technological platform to provide multiple services) had been talked about for years, the telecom industry still was characterized by distinct segments (or “silos”). For example, there was a separate long distance market; local telephone service was dominated by 8 companies; and the Internet was in its infancy for commercial purposes.
The purpose of the Telecommunication Act of 1996 was sweeping yet plainly worded:  “To promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies.”  To this end, the Act sought to eliminate boundaries between industry segments in an effort to extend competition to previously monopolistic areas such as local telephone and cable television service.
Over the past decade since the Act was enacted, every segment of the telecom industry has undergone a radical transformation.  In fact, it is difficult to say today how much longer there will even be discrete industry segments.  This technological convergence has been accompanied by unprecedented consolidation among traditional players whose once-secure markets are eroding out from under them.  The simple fact is that technological convergence and market forces have produced an industry where the traditional market heavyweights─even as beefed up through consolidation─are but several of a number of viable and potent competitors, each struggling to remain ahead of the technological curve and to make its services attractive to an increasingly sophisticated and demanding customer base.
While visionary when enacted, the 1996 Act has proven to be short-sighted.  The FCC has tried mightily to bring about some form of regulatory parity but its ability to do so has been severely constrained by the Act’s preexisting service categories.  Without question, Congress needs to get involved once more in order to bring about a more rational, streamlined and─hopefully─technology-proof regulatory structure. 
In this article, I will discuss the three most important issues regarding telecom reform: universal service reform; the cable franchise process; and “net neutrality.” Lastly, I will provide some closing thoughts on where the telecommunications industry and regulation might stand 10 years from now.  Articles Editor, Aadam Alikhan
 
Indian Citizenship and the Privileges and Immunities Clauses of the United States Constitution: An Alternative to the Problems of the Full Faith and Credit and Comity?
James B. Wadley...................................................................................................................................................... 31
Members of Indian tribes have long struggled to have the legal decisions and edicts of their Tribal courts fully recognized and enforced by state courts. The conventional doctrines of full faith and credit and of comity have often allowed states that were suspicious or of jealous of Tribal prerogatives to decline to give them full force and effect, often because tribal processes could be claimed to be different and therefore somehow inferior or because tribes are generally not considered to be the equivalent of states. Indians, however, enjoy a very unique citizenship in the United States. This citizenship was created by federal statute and, like other types of citizenship, ought to have certain protected privileges and immunities under relevant provisions of the United States Constitution. It is argued in this article that the right to have one’s tribal decrees enforced within the United States, though outside the boundaries of a reservation, should be a privilege of tribal citizenship. The difficulty with this position is that Indian citizenship has never been closely analyzed to fully describe or determine its privileges and immunities dimensions. This article is intended to begin a conversation to that effect.  Articles Editors,  Dan Robinson & Chris Frericks
 
 

COMMENTS

 
Up-Skirt and Other Dirt: Why Cell Phone Cameras and Other Technologies Require a New Approach to Protecting Personal Privacy in Public Places
Kristin M. Beasley...................................................................................................................................................... 69
Despite the apparent availability of rights of action for a plaintiff who feels her privacy has been violated, a plaintiff may actually be unable to recover in a common law tort action.  This is because, in order to recover on an invasion of privacy tort, a person must show that she had a reasonable expectation of privacy.  However, traditionally, a person was thought to have waived the right to expect privacy when she appeared in public. 
The doctrine of waiver of personal privacy in public places had the benefit of being a bright line test.  Furthermore, because it was very difficult to take a person’s photo without her knowledge and even more difficult to widely distribute such a photo if it had no intrinsic news value, the doctrine was not terribly detrimental to the average person’s privacy expectation.
Today, however, the advent of cell phone cameras and small digital cameras makes it easy for a person to take another’s photo at any time, often without the other person’s knowledge.  This increases a photographer’s ability to capture an embarrassing or private moment. The ease and nominal expense of posting pictures to the internet has also added a new dimension to invasions of privacy.  Therefore, the definition of what constitutes a reasonable expectation of privacy for tort purposes must change to account for new technologies.  Unfortunately, common law may not be able to overcome its limiting and unimaginative precedents.  Thus real protection will likely require a legislative fix with clear statutory language that signals an expansion of personal privacy rights.
 
The Fourth Amendment and Privacy Issues on the “New” Internet: Facebook.com and MySpace.com
Matthew J. Hodge..................................................................................................................................................... 95
Facebook.com and MySpace.com are two of the most trafficked Web sites on the Internet.  These Web sites form a "new" type of internet where users can create profiles and share information like never before.  With the exploding popularity comes the usage by law enforcement of these Web sites to investigate criminal offenses and the corresponding privacy concerns of citizens. 
The Comment explores Fourth Amendment jurisprudence beginning with Katz v. United States and continuing with the landmark decisions of Smith v. Maryland and United States v. Miller.  The Comment then discusses Fourth Amendment cases dealing specifically with cyberspace communications, including a case out of the Court of Appeals for the Armed Forces, United States v. Maxwell.  The Comment goes on to discuss how a court faced with a Fourth Amendment issue on Facebook.com or MySpace.com might apply the holdings from prior cases.
Facebook.com and MySpace.com have default settings which allow almost anyone to view a profile created on one of these Web sites.  However, the sites also allow users to restrict access to their profiles to only those they accept or allow to view.  This active step creates different issues with regards to a reasonable expectation of privacy.  The Web sites also have privacy policies which allow them to collect information from users and store the profiles on their central systems.  All of these features create issues a court would likely deal with when presented with Fourth Amendment inquiry.  The Comment discusses these issues and ultimately concludes that in limited instances, a person should be entitled to a reasonable expectation of privacy on these Web sites.