1JRN 930 • Bauer • Fall 2003The framework of U.S. media policy A primerPart IU.S. Legal and Political System© 2003 J. M. BauerU.S. Constitution Supreme Law of the Land, can only be amended in complicated process:z Amendments must be proposed by both Houses of Congress with 2/3 majority or by constitutional convention of the statesz Amendments must be ratified by 3/4 of states.z So far 26 amendments (“Bill of Rights”, 1791) State constitutions supreme state law U.S.C. preempts state constitutions© 2003 J. M. BauerU.S. Constitution ... Separates power of government between legislature, executive, and judiciary branch Defines limits for the power of government. Delineates powers of federal and state governmentsAmendment I: “ Congress shall make no law … abridging the freedom of speech, or of the press …”Amendment V: “No person shall be … deprived of life, liberty or property without due process of law … nor shall private property be taken .. without just compensation”Amendment X: “The powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved for the States ...”© 2003 J. M. BauerSeparation of powers Congress holds all legislative powers The President holds executive power Judiciary power is held by the courtsArticle I, Section 1, U.S.C.: “All legislative Powers herein granted shall be vested in a Congress of the United States ..”Article II, Section 1, U.S.C.: “The executive Power shall be vested in a President of the United States of America …”Article III, Section 1, U.S.C.: “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may ... establish.”© 2003 J. M. BauerSeparation of powers ... System of checks and balances rather than division of laborPresident CongressCourtsImpeachmentVetoNominationReviewLawsReview2© 2003 J. M. BauerFederalism In a federal system, the constituent political units (states) delegate some of their sovereignty to a higher level (the federal government) U.S. Constitution prescribes:z Interstate and international telecom issues are federal jurisdictionz All others (intrastate) are state or local jurisdiction unless assigned to federal level© 2003 J. M. BauerMedia policy frameworkRadio/TV Wireless Telephone Cable ISJuris-dictionFCCFCC,some stateLocal orstatefranchiseFCC, states,localNo specificregulationMarketentryFCC licenseFCC license or unlicensedLimitedcertificationrequirementFranchise UnregulatedPricesUnregulated UnregulatedFederal and state priceregulationBasic pricesin somelocationsUnregulatedThirdpartyaccessNoneInter-connectionUnbundling,Inter-connectionNone None© 2003 J. M. BauerInternational coordination Many telecom issues require international policy coordination (e.g., satellite orbits, spectrum allocation, standards) Intergovernmental process, often mediated through international agencies, such as the ITUz Bilateral agreements between two nationsz Multilateral agreements between several nations (e.g., WTO agreement of 2/97)© 2003 J. M. BauerSources of U.S. law Constitutional lawz Created when judges interpret the language of constitutions in decisions and opinionsz U.S. Constitutionz State constitutionsz Home rule charters (counties, cities) Statutory lawz Created by legislative body and recorded in codes and law books© 2003 J. M. BauerSelected statutes Wireless Communications Act 1912 Radio Act 1927 Communications Act of 1934  Satellite Policy Act 1962 Copyright Act 1976 Cable Communications Policy Act of 1984 Cable Television Consumer Protection and Competition Act of 1992 Telecommunications Act of 1996 Digital Millennium Copyright Act 1998 Michigan Telecommunications Act 1995© 2003 J. M. BauerSources of U.S. law ... Common lawz Emanates from individual decisions by judges in cases not covered by statutory law.z Based on legal precedent. A judge can: Adhere to precedent (stare decisis). Deviate from previous case (distinguish case).  Overrule or reverse a precedent if the present circumstances would render its application unfair or unworkable.z Example in telecoms: law of privacy.3© 2003 J. M. BauerSources of U.S. law ... Administrative lawz Rules, regulations, and policies created by administrative agencies such as FCC. Actions of equityz Common law holds that damages (money) can right a wrong and that no action should be undertaken until an injury occurred.z Actions of equity allow injunctions before harm is done.© 2003 J. M. BauerOther forms of law Criminal law and civil lawz Criminal law applies to offenses against society as a whole (“the people”).z Prosecution must prove guilt beyond a reasonable doubt.z Civil law applies to cases where one party claims another party injured him/her individually.z Case must be proven by preponderance of the evidence.© 2003 J. M. BauerOther forms of law ... Torts and damagesz A tort is a civil wrong that creates a right for the victim to sue the perpetratorz Examples include negligence, slander, or libelz Plaintiff has to demonstrate damages: General damages (e.g., loss of prestige) Special damages (e.g., out-of-pocket expenses) Punitive damages (non-criminal punishment) Statutory damages (e.g., in copyright cases) Treble damages (e.g., antitrust, advertising fraud)Part IIFederal Government© 2003 J. M. BauerMain agencies in telecoms At the federal level, telecom policy is influenced by multitude of agencies:z Congress and its committees/subcommitteesz Independent agencies (FCC, FTC)z Executive branch (White House, DOC, DOJ, DOS, DOD)z Courts (U.S. Supreme Court, District Courts) Diffusion of authority often leads to conflict, rivalry, and strategic action© 2003 J. M. BauerU.S. Congress The power of Congress to regulate telecoms stems from the “Commerce Clause” of the U.S. Constitution. Within Congress, several Committees and Subcommittees draft policy. Its power is limited by the First and Tenth Amendments.Commerce Clause“The Congress shall have Power to regulate Commerce with foreign Nations, and among the several States …” Article I, Section 8, Clause 3, U.S.C.4© 2003 J. M. BauerCongressional committees(exemplary)U.S.