Publication Date

5-1997

Journal

Columbia Law Review

Abstract

In recent years, both the Supreme Court and the Congress have made much of the rapid pace of technological change within the telecommunications industry. In passing the Telecommunications Act of 1996, for example, Congressional leaders described these changes in almost millennial terms, predicting that "convergence" of communications technologies would beget a new regulatory world in which telecommunications technologies would no longer be regulated in a piece-mea4 media-specific fashion, but rather as part of a unified, coherent scheme. The Supreme Court, likewise, has portrayed changes in telecommunications technology as reason to move its First Amendment jurisprudence away from media-specific categories and to ponder other sweeping doctrinal changes.

In this Essay, Professors Price and Duffy examine the ways in which Congress and the Court have really accommodated, and exploited, changes in telecommunications technology and weigh these institutions' actual achievements against their rhetoric. They first examine the Telecommunications Act of 1996 and argue that, for all the revolutionary language that passed the lips of many in Congress, the Act largely retains the rigid, category-specific approach of earlier telecommunications legislation. In contrast, the Justices of the Supreme Court, though claiming to proceed with caution and restraint, seem to be seizing on technological change in telecommunications to advance far more fundamental changes in established First Amendment law. Nevertheless, the changes being advanced-albeit very significant deviations from established doctrine-still have strong roots in all that has gone before. Technological change has provided the Justices with an opportunity to extend revered doctrines, such as public forum and public subsidy law, into new areas, and to reopen old jurisprudential debates, such as the ancient rules-versus-standards controversy, with predictable alliances. In both Congress and the Court, the authors conclude, the decisionmakers involved have often used technological changes as an excuse-a camouflage-for advancing agendas that have little necessary connection with those changes and that indeed may have far more in common with the past.

Volume

97

Issue

4

First Page

976

Last Page

1015

Publisher

Columbia Law School

Disciplines

Law | Law and Economics

Comments

Symposium: Telecommunications Law: Unscrambling the Signals, Unbundling the Law

Download

Share

COinS