Spring 1999 Telecommunications and Free Speech Examination

       
   

YALE LAW SCHOOL

Spring Term 1999 Examination

Telecommunications and Free Speech

May, 1999

(Self-Scheduled– Twenty Four Hours)

Professor Balkin

Instructions

1. This examination consists of two essay questions. Each has equal weight in determining your grade. Your answers to the three questions combined should total no more than 5,000 words.

2. Please read each question carefully and pay attention to what you are being asked to do.

3. If anything about a question is ambiguous, decide what you think is meant, tell me what you think is meant, and answer the question accordingly. No reasonable resolution of an ambiguity will be penalized. If you need to assume additional facts in order to answer a question, state what those facts are and how they affect your answer.

4. You may either type your exam (which I prefer) or use blue books. If the latter, please use a separate blue book for each question. Mark the number of the question on the front of the blue book. If you need more than one blue book for a question, that is fine, but indicate on each blue book which question it answers and in what order it is to be read. Write on only one side of the page. Skip every other line. The easier your answer is to read, the more appeal it will have when it is viewed at 2:00 in the morning.

5. Think before you write. Organize your answer. You get extra points for clarity and succinctness. You get penalized for an answer which is disorganized and confusing.

6. This exam is open book, with one exception: You may not use Lexis, Westlaw, or other electronic databases.

7. Good luck.

Question One

(One Half)

The FCC has given broadcast licensees permission to choose between several different forms of DTV (digital television) delivery, including HDTV, SDTV, and ancillary and supplementary services. Congress has also given broadcasters a transition period for surrender of their existing spectrum now devoted to analog broadcasts.

How should these rules interact with the existing obligations of cable operators to carry local broadcast signals? What system would you design as a policy matter to deal with the conflicting demands of broadcasters and cable operators concerning must carry obligations both during the transition to DTV and afterwards? Explain the most promising alternatives from a policy standpoint and explain your preferred choice. Describe the constitutional questions that are relevant to your proposed solution and how you would resolve them.

Question Two

(One Half)

(1) Could Congress constitutionally require that satellite operators provide up to 15 percent of their channels for leased access along the same lines as the section 612 obligations of cable television operators? See 47 U.S.C. § 532. In what ways, if any, would the leased access provisions have to differ from those applicable to cable operators in order to be constitutional?

(2) Assuming that Congress could impose the equivalent of leased access provisions, could Congress amend 47 U.S.C. § 335 so that satellite operators could refuse to transmit any leased access program or any portion of such program that contains obscenity or indecency? For purposes of this question you may assume that a program (or a portion of a program) is indecent if it “describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards.”

(3) Currently 47 U.S.C. § 335(b)(3) prevents satellite operators from engaging in editorial control of noncommercial programming of an educational or informational nature that they must carry under § 335(b)(1). Could Congress amend this provision so that satellite operators could refuse to transmit any noncommercial program they carry under § 335(b)(1) or any portion of such program that contains obscenity or indecency?

(4) Could Congress require that satellite operators segregate all indecent programming to a period between 12:00 midnight and 6:00am local time?

END OF EXAMINATION