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Telecommunications Law in the Internet Age
 
 

Telecommunications Law in the Internet Age, 1st Edition

 
Telecommunications Law in the Internet Age, 1st Edition,Sharon Black,ISBN9781558605466
 
 
 

  

Morgan Kaufmann

9781558605466

9780080518688

516

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Key Features

* Offers authoritative coverage from a lawyer and telecommunications authority who has been working in the field for over three decades.
* Examines telecommunications law in the U.S., at both the federal and state level.
* Presents an unparalleled source of information on international trade regulations and their effects on the industry.
* Covers the modern telecommunications issues with which most companies are grappling: wireless communication, e-commerce, satellite systems, privacy and encryption, Internet taxation, export controls, intellectual property, spamming, pornography, Internet telephony, extranets, and more.
* Provides guidelines for preventing inadvertent violations of telecommunications law.
* Offers guidance on fending off legal and illegal attacks by hackers, competitors, and foreign governments.
* Helps you do more than understand and obey the law: helps you thrive within it.

Description


For companies in and around the telecommunications field, the past few years have been a time of extraordinary change-technologically and legally. The enacting of the Telecommunications Act of 1996 and the development of international trade agreements have fundamentally changed the environment in which your business operates, creating risks, responsibilities, and opportunities that were not there before.


Until now, you'd have had a hard time finding a serious business book that offered any more than a cursory glance at this transformed world. But at last there's a resource you can depend on for in-depth analysis and sound advice. Written in easy-to-understand language, Telecommunications Law in the Internet Age systematically examines the complex interrelationships of new laws, new technologies, and new business practices, and equips you with the practical understanding you need to run your enterprise optimally within today's legal boundaries.

Readership

telecommunications managers and staff, telecommunications attorneys and telecommunication students

Sharon Black

Sharon Black is an international telecommunications attorney and consultant with 30 years of industry experience. She was the first person in the U.S. to earn an M.S. in telecommunications, graduating in 1972 from the University of Colorado's Interdisciplinary Telecommunications Program in the Department of Electrical Engineering. She holds an undergraduate degree in international economics from the University of Colorado and a law degree from the University of Denver.

Black has served as a telecommunications policy analyst for the U.S. Department of Commerce and an analyst, network designer, manager, and vice president of telecommunications in the financial services industry. For her accomplishments, she has been honored by the U.S. Department of Commerce, Office of Telecommunications (now NTIA), and various national industry organizations. She is the author of numerous telecommunications and law articles and has taught telecommunications courses for Telecommunications Research Associates and the University of Colorado.

Affiliations and Expertise

University of Colorado, Denver

Telecommunications Law in the Internet Age, 1st Edition

Chapter 1 - Introduction—The New Telecommunications Environment


1.1 New Transport Technologies

1.2 Converged Voice, Data, Video, and Graphics Systems

1.3 Legal Changes

1.3.1 Breakup of the Bell System

1.3.2 The Internet

1.3.3 Changes in State Law

1.3.4 The Telecommunications Act of 1996

1.3.5 World Trade Organization Agreement of 1997

1.4 International Telecommunications Equipment Markets

1.5 Technical Standards

1.6 What Is Communicated?

1.7 With Whom Are We Communicating?

1.8 Where Are We Communicating?

1.9 New Local Access Options

1.10 Universal Service Fund Support of Internet Connections

1.11 Structural Changes

Conclusion

Endnotes



Part I The New Competitive Telecommunications Environment


Chapter 2 - Competition and Regulation—a Continuing Telecommunications Cycle


2.1 Competition versus Regulation—Seeking a Balance

2.1.1 Rise of Trusts and Anticompetitive Behavior

2.1.2 Antitrust Law and Regulation

2.1.3 Impact of Technological Changes

2.2 Early Competition the Communications Industry

2.2.1 Telegraph

2.2.2 International Telegraph Communications

2.2.3 Equipment Manufacturing

2.2.4 Telephone

2.3 The Rise of the Bell System Dominance

2.3.1 Bell's Patent Exclusivity and Return on Investment

2.3.2 AT&T Parent over Bell System and Western Union

2.3.3 AT&T's Refusal to Interconnect with Competitors

2.4 Regulation of the Communications Industry

2.4.1 1912 Antitrust Case: Settled with 1913 Kingsbury Commitment

2.4.2 Universal Service

2.4.3 1921 The Willis-Graham Act

2.4.4 1934 Communications Act

2.4.5 1949 Antitrust Case: Settled with 1956 Consent Decree

2.4.6 1974 Antitrust Case: Settled with 1982 Modified Final Judgment

2.5 Technological Convergence and Renewed Competition

2.5.1 Customer Premises Equipment

2.5.2 Microwave

2.5.3 Undersea Cables

2.5.4 Satellites

2.5.5 Computers

Conclusion

Endnotes


Chapter 3 - The Telecommunications Act of 1996


3.1 Purpose of the Telecommunications Act of 1996

3.1.1 Federal Action

3.1.2 States' Action

3.2 Structure and Organization of the 1996 Act—47 U.S.C. §§ 151 et seq.

3.3. Definitions—Section 3 of the Telecommunications Act of 1996

3.3.1 Three-Pronged Definition of Telecommunications

3.3.2 Definitions of Carriers

3.3.3 Definitions of Equipment

3.4 Provisions to Open the Competitive Market

3.4.1 Three Ways to Enter the New Competitive Market, 251(c)(2-4)

3.4.2 Implementation of the 1996 Act, § 251(d)(1)

3.4.3 Process for Writing Interconnection Agreements, § 252

3.4.4 Post-Approval Issues

3.5 Duties and Obligations of Carriers

3.5.1 All Telecommunications Carriers, § 251(a)

3.5.2 Duties of Local Exchange Carriers, § 251(b)

3.5.3 Duties of Incumbent Local Exchange Carriers, § 251(c)

3.5.4 Duties of Bell Operating Companies, § 271

3.6 Challenges to the Constitutionality of Section 271 Requirements

3.6.1 Bill of Attainder

3.6.2 Separation of Powers

3.6.3 Equal Protection Clause

3.6.4 Bell Operating Companies' Right to Free Speech

Conclusion

Endnotes


Chapter 4 - Outstanding Issues from the Telecommunications Act of 1996


4.1 Local Number Portability

4.1.1 Three Types of Number Portability

4.1.2 The North American Numbering Plan

4.1.3 Pre-1996 Number Portability in the United States

4.1.4 Interim Methods

4.1.5 Long-Term Database-Dip Methods

4.1.6 Number Portability Regulation

4.1.7 Ongoing Issues

4.2 Universal Service

4.2.1 The Early Concept

4.2.2 Universal Service in the 1996 Act

4.3 Access

4.3.1 FCC's 1983 Access Charge Rules

4.3.2 Initial Challenge to FCC's Exemption of ISPs—ACTA's Internet Phone Petition to Designate ISPs as Long-Distance Providers

4.3.3 Impact of the Telecommunications Act of 1996

4.4 Reciprocal Compensation—Payment for Transport and Termination of Communications

4.4.1 Initial Reaction of Incumbent Local Exchange Carriers and Competitive Local Exchange Carriers to Reciprocal Compensation

4.4.2 Incumbent Local Exchange Carriers' Reaction to Competitive Local Exchange Carriers' ISP-Minutes-Terminated Strategy

4.4.3 State Regulatory Concerns Regarding Competitive Local Exchange Carriers' ISP Strategy

4.4.4 Challenges to FCC's Authority and Rules Implementing the Telecommunications Act of 1996

4.4.5 February 1999—FCC's Declaratory Ruling

Conclusion

Endnotes



Part II Embracing the Expanded Global Telecommunications Market


Chapter 5 - The World Trade Organization and Its Telecommunications-Related Agreements


5.1 Historical International Trade—Goods, Not Services

5.1.1 International Trade Law

5.1.2 U.S. Trade Policy

5.2 1948—The General Agreement on Tariffs and Trade

5.2.1 Structure and Operation of GATT

5.2.2 1970s and 1980s—Movement to Include Trade in Services in GATT

5.2.3 September 20, 1986—Opening of the GATT's Uruguay Round

5.2.4 GATT Principles

5.2.5 Drafts of the Services Framework

5.3 December 1992—North American Free Trade Agreement NAFTA

5.3.1 Telecommunications Equipment and Service

5.3.2 Licensing

5.3.3 Technical Standards

5.3.4 Basic versus Enhanced Telecommunications Services

5.3.5 Antitrust Issue

5.3.6 Intellectual Property Issues

5.3.7 Dispute Resolution

5.4 March 1994—The Global Information Infrastructure (GII) Concept is Introduced

5.5 April 15, 1994—Uruguay Round Concluded, WTO Created in Marrakesh, Morocco

5.5.1 Volume 1—The Legal Texts

5.5.2 WTO Established and Absorbed GATT

5.5.3 Annex 1A—1994 GATT

5.5.4 Annex 1B—1994 GATS

5.5.5 Annex on Article II (Most-Favored Nations) Exceptions

5.5.6 April 1995— Annex on Telecommunications

5.5.7 Annex on Negotiations on Basic Telecommunications (NBT)

5.6 April 24, 1996—Initial Results of the Negotiations on Basic Telecommunications

5.6.1 Negotiating Group on Basic Communications' Reference Paper to mthe Council for Trade in Services

5.6.2 Market Access Offers—Country Commitments to Include Basic Telecommunications

5.6.3 Agreement to Set Second Deadline for Continued Negotiations on Basic Telecommunications

5.7 December 1996—Singapore Ministerial Conference

5.8 February 15, 1997—WTO Agreement on Basic Telecommunications

5.9 April 15, 1997—Fourth Protocol to GATS Adopted

5.9.1 November 1997

Conclusion

Endnotes


Chapter 6 - Participating in Global Telecommunications Trade: U.S. Import and Export Laws


6.1 U.S. Trade Laws

6.1.1 Chapter 4—Tariff Act of 1930

6.1.2 Chapter 12—Trade Act of 1974

6.1.3 Chapter 13—Trade Agreements Act of 1979

6.1.4 Chapter 17—Negotiation and Implementation of Trade Agreements (The Omnibus Trade and Competitiveness Act of 1988)

6.1.5 Chapter 19—Telecommunications Trade Act of 1988

6.1.6 Chapter 21—North American Free Trade Agreement Implementation Act of 1993

6.1.7 Chapter 22—Uruguay Round Trade Agreements

6.2 U.S. Export Laws

6.2.1 Export Administration Act of 1979 (EAA)

6.2.2 Arms Export Control Act (AECA)

6.3 Implementing Agencies

6.3.1 U.S. Trade Representative

6.3.2 International Trade Commission (ITC)

6.3.3 Coordinating Committee for Multilateral Export Control (COCOM)

6.3.4 The Defense Technology Security Administration and the Office of Defense Trade Control

6.3.5 Department of Commerce

6.4 What Is Exported?

6.4.1 Department of Commerce's Commodity Control List (CCL)

6.4.2 COCOM's International Industrial and Munitions Lists

6.4.3 Department of Defense's Munitions List

6.4.4 Classification of Re-exports

6.4.5 Licensing Requirements

6.5 To Whom Is the Product Exported?

6.5.1 Trading with the Enemy Act (TWEA) and the International Emergency Economic Powers Act (IEEPA)

6.5.2 Country Lists

6.5.3 Table of Denial Orders

6.5.4 Specially Designated Nationals List

6.6 How Are Exports Conducted?

6.6.1 Anti-Boycott Amendments

6.6.2 Ribicoff Amendments to the Tax Reform Act

6.6.3 Foreign Corrupt Practices Act (FCPA)

6.7 Record Retention Requirements

6.8 Penalties for Violations of Export Laws

6.8.1 Criminal Penalties

6.8.2 Civil Penalties

6.9 Drafting International Trade Contracts

6.9.1 Government Regulations and Licensing Requirements

6.9.2 Use of Incoterms

6.9.3 Choice of Law and Jurisdiction—The United Nations Convention on Contracts for the International Sales of Goods (CISG)

6.9.4 Payment

6.9.5 Currency To Be Used

6.9.6 Warranties

6.9.7 Unforeseeable Force majure Events

6.9.8 Dispute Resolution

6.10 Establishing an Export Compliance Program

Conclusion

Endnotes


Chapter 7 - Licensing to Protect Telecommunications Intellectual Property


7.1 U.S. Patent Law

7.2 U.S. Trademark Law

7.3 U.S. Trade Secret Law

7.4 U.S. Copyright Law

7.4.1 Exceptions to the Rights of Copyright Owners

7.4.2 Remedies for Infringement

7.5 The Legality of Reverse Engineering and Restrictive License Clauses

7.5.1 "Only Means" of Access

7.5.2 Restrictive Clauses

7.5.3 Noncompete Clauses

7.5.4 Overreaching Clauses

7.5.5 Appropriate License Clauses

7.6 The European Software Directive

7.6.1 Similarities of European Software Copyright Law to U.S. Copyright Law

7.6.2 Differences Between European Software Copyright Law and U.S. Copyright Law

7.6.3 Importance of the Similarities and Differences between European Software Law and U.S. Law to Software Developers

7.7 "Must Include" Concepts for Software Licenses

7.8 Model License

Conclusion

Endnotes



Part III Legal Issues With Advanced Technologies


Chapter 8 - Privacy


8.1 Introduction

8.2 The Evolution of a Legal Right to Privacy

8.2.1 Privacy in the U.S. Constitution

8.2.2 Invasion of Privacy—Tort Law

8.2.3 Supreme Court Interpretations of Constitutional Amendments Recognizing a Right of Privacy

8.2.4 Balance of Personal Privacy with Other Considerations

8.2.5 Supreme Court Interpretation of Fourth Amendment Regarding Wiretapping

8.3 Federal Privacy Laws Protecting Communications in Transit and in Storage

8.3.1 Omnibus Crime Control and Safe Streets Act of 1968, Including the Wiretap Act of 1968

8.3.2 Electronic Communications Privacy Act (ECPA) of 1986

8.3.3 Communications Assistance for Law Enforcement Act of 1994—The Digital Telephony Act

8.4 Federal Privacy Laws Protecting Personal Information in Government Databases

8.4.1 Federal Records Act of 1950

8.4.2 The Privacy Act of 1974

8.4.3 The Computer Matching and Privacy Protection Act

8.4.4 Freedom of Information Act (FOIA) of 1976

8.5 Federal Privacy Laws Protecting Personal Bank and Financial Information

8.5.1 Bank Records and Foreign Transactions Act (BRAFTA) of 1970

8.5.2 Right to Financial Privacy Act (RFPA) of 1988

8.6 Federal Privacy Laws Protecting Private Databases from Searches and Seizures by Government Officials

8.6.1 Privacy Protection Act (PPA) of 1980

8.6.2 Court Cases Reviewing the Privacy Protection Act

8.7 Federal Privacy Laws Prohibiting Illegal Access to Protected Computers

8.7.1 Computer Fraud and Abuse Act of 1988

8.7.2 National Information Infrastructure Protection Act (NIIPA) of 1996

8.8 Federal Privacy Laws Prohibiting Unwanted and Harassing Communications

8.8.1 The Telephone Harassment Act of 1968

8.8.2 The Telephone Consumer Protection Act (TCPA) of 1991

8.9 Federal Privacy Laws Protecting Information about Children

8.9.1 Children's Online Privacy Protection Act (COPPA) of 1998

8.9.2 Child Online Protection Act (COPA) of 1998

8.9.3 Child Pornography Prevention Act (CPPA) of 1996

8.9.4 Protection of Children from Sexual Predators Act (PCSPA) of 1998

8.9.5 Children's Internet Protection Act (CIPA) of 1999

8.10 State Privacy Laws

8.11 Collection, Use, and Dissemination of Personal Information without Permission

8.11.1 Cookies

8.11.2 Social Security Numbers—Identity Theft

8.11.3 Intellectual Property Theft

8.11.4 Monitoring by Browsers and ISPs

8.11.5 Purchased Information and Merged Databases

8.12 Solutions to Collection and Use of Information without Permission

8.12.1 Proposed Legislation

8.12.2 Tort Action

8.12.3 Customer Caution

8.12.4 Industry Self-Regulation

8.12.5 Software to Detect and Delete Cookies and Spam

8.12.6 The Individual's Ability to Correct Inaccurate Information

8.12.7 Web Sites Offering Information on Privacy Protection

8.13 Application of Privacy Law to Modern Technologies and Services

8.13.1 Email and Voicemail Systems

8.13.2 Cordless/Wireless Phones

8.13.3 Pagers

8.14 International Privacy Concerns

8.14.1 European Community's Privacy Directive

8.14.2 Other Nations

Conclusion

Endnotes


Chapter 9 - Encryption


9.1 Encryption Technology

9.1.1 Forms of Encryption

9.1.2 Key Structure

9.2 Early Use of Encryption in the United States

9.2.1 1930s-1950s: Encryption

9.2.2 1960s-1970s: Computers, Digitization, Multiplexing, Packetization and Encryption

9.3 Private-Key Cryptosystems

9.3.1 1970 (1977): U.S. Data Encryption Standard (DES)

9.3.2 1995 (1999): Triple DES (3DES)

9.3.3 1997 (2001): Advanced Encryption System (AES)

9.4 Public-Key: Cryptosystems

9.4.1 Mathematical Link Between Key Pairs

9.4.2 Digital Signatures

9.4.3 Key Servers

9.4.4 Session Keys

9.4.5 Well-Known Public-Key Cryptosystems

9.5 Comparison of Private-Key and Public-Key Encryption Technologies

9.6 Law Enforcement and National Security Concerns with Public Use of Encryption

9.6.1 U.S. Laws Restricting the Export of Encryption Systems

9.6.2 U.S. Laws Restricting Private, Nonmilitary Use of Encryption Systems within the United States

9.6.3 Escrowed Encryption Standard (EES) and the Clipper and Capstone Chips

9.6.4 Opposition to the EES, Clipper Chip and Encryption Export Restrictions

9.6.5 Efforts to Relax Export Restrictions

9.7 International Encryption Policies

9.7.1 The Organization for Economic Cooperation and Development (OECD)

9.7.2 1996-1998: Wassenaar Arrangement

9.7.3 United Kingdom

9.7.4 1997—European Commission Policy Paper on Encryption

9.7.5 United Nations Commission on International Trade Law (UNCITRAL)

9.8 U.S. Reaction to International Views of Encryption

9.8.1 1996—Proposed Encrypted Communications Privacy Act of 1996 (S. 1587)

9.8.2 1996—Promotion of Commerce On-Line in the Digital Era (PRO-CODE) Act S. 1726

9.8.3 1996—National Research Council Report

9.8.4 1997—Proposed Security and Freedom through Encryption (SAFE) Act (HR 695)

9.8.5 1997—Secure Public Networks Act (S. 909)

9.8.6 1997—Amended SAFE Act

9.9 Court Cases Reviewing the U.S. Encryption Export Restrictions

9.9.1 Bernstein Cases

9.9.2 Karn Decisions

9.9.3 Junger Decisions

9.10 Changes in 2000

9.11 State Laws Concerning Encryption, Key Escrow, and Digital Signatures

Conclusion

Endnotes


Chapter 10 - Cyberlaw: Evolving Legal Issues with the Internet


10.1 Commerce on the Internet

10.1.1 Uniform Commercial Code (U.C.C.)

10.1.2 End-User Contracts

10.1.3 International E-Commerce Efforts

10.2 Jurisdiction

10.2.1 Jurisdiction in E-Commerce

10.2.2 Personal Jurisdiction in the Internet Age

10.2.3 International Jurisdiction

10.3 Taxation

10.3.1 1967—National Bella Hess, Inc. v. Dept. of Revenue

10.3.2 1987—Proposed Modem Tax

10.3.3 1992—Quill Corp. v. Heitkamp

10.3.4 1996 to 1997—International Tax Discussions

10.3.5 1997—Proposed Internet Tax Freedom Act (ITFA)

10.3.6 1998—California Internet Tax Freedom Act

10.3.7 1998—Federal Internet Tax Freedom Act

10.3.8 National Tax Association Communications and Electronic Commerce Tax Project

10.4 Trademark/Domain Names

10.4.1 Trademark Infringement Issues in the Internet Age

10.4.2 Actions by Companies to Protect Their Trademarks

10.5 Copyright

10.5.1 Copyright Act of 1976

10.5.2 National Commission on New Technological Uses of Copyright Works (CONTU)

10.5.3 1998—Digital Millennium Copyright Act (DMCA)

10.5.4 Exclusive Rights

10.5.5 Impact of Fair Use on Copyright Contracts

10.6 Trade Secrets

10.7 Defamation on the Internet

10.7.1 Morrison & Forester v. Wick, 94 F. Supp.2.d 1125 (D. Colo. 2000)

10.7.2 Lucent Technologies v. Johnson, Civ. No. 00-05668 (C. D. Cal. Sept. 12, 2000)

10.7.3 Lucent Technologies v. lucentsucks.com, 54 U.S.P. Q2d 1653 (E. D. Va. 2000)

10.8 Liability of ISPs and Computer System Operators

10.8.1 Publishers

10.8.2 Distributors

10.8.3 Common Carriers

10.8.4 Claims on Web Sites

10.8.5 Digital Millenium Copyright Act

10.9 Obscenity and Violence on the Internet

10.9.1 1996—The Communications Decency Act (CDA)

10.9.2 Reno v. American Civil Liberties Union (Reno II)

10.9.3 Child Online Protection Act (COPA)

10.9.4 American Civil Liberties Union v. Reno (Reno III)

10.9.5 Child Online Privacy Protection Act (COPPA)

10.9.6 State Laws

10.10 Fraud on the Internet

Conclusion

Endnotes


Appendix A - Key Documents and Decisions Concerning Local Number Portability

Appendix B - Key Documents and Decisions Concerning Universal Service


Appendix C - Key Documents and Decisions Concerning Access and Reciprocal Compensation


Appendix D - Legal Instruments Embodying the Results of the Uruguay Round


Appendix E - Membership of the World Trade Organization


Appendix F - Commitments and Most Favored Nation Exemptions


Appendix G - Chapters within Title 19 of the U. S. Code Customs Duties


Appendix H - State Privacy Laws


Appendix I - Resources to Detect and Delete Cookies


Appendix J - State Laws Concerning Encryption, Key Escrow, and Digital Signatures


Index

Quotes and reviews

@qu:"Telecommunications law is a subject that needs clear synthesis and focus as the picture shifts to reveal a new global telecom market. Sharon Black has undertaken the remarkable task of demystifying this area of the law and explaining the key issues that affect businesses and individuals at the state, national, and international level. This book should be on the shelves of anyone who is interested in the rights, obligations, and policies governing modern communications."
@source:—Brent Alderfer, President, Community Energy, Inc., and former Public Utility Commissioner

@qu:"Sharon Black's book provides a broad treatment of law related to the new telecommunications industry. Practicing professionals should consider this an essential reference to be effective in this dynamic industry."
@source:—Martin Weiss, Chairman of the Department of Information Science and Telecommunications, University of Pittsburgh
 
 
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