28 Comm. Law. 1 (2011-2012)

handle is hein.journals/comlaw28 and id is 1 raw text is: Communiclions
Publication of the Forum
on Communications Law
American Bar Association
Volume 28, Number 1, June 2011'
Mimi                         a e- s  me  *     T

In this issue
COVER STORY
Damned If You Do ... and
Damned If You Don't ................1
The lack of clarity in the long-awaited
and hotly debated Open Internet Order
leaves ISPs in a quandary. If they pro-
vide direct service to their customers,
they gain the access speed necessary for
some applications but risk FCC scru-
tiny for not complying with the Order's
ambiguous requirements.
Uncivil Discourse.....................2
The forum chair briefly recounts some
of the incidents, ranging from tacky to
deplorable, that generated much of our
First Amendment jurisprudence. The
inglorious litany of protected expres-
sions and colorful speakers is only
likely to escalate.
In the Wake of Citizens United.... 3
Citizens United has inspired a new wave
of political warfare using litigation
as a weapon, including cases chal-
lenging more than campaign finance
restrictions.
Think Twice Before Filing a
Report Against California Cops..8
The Los Angeles Police Department
provides a form (in seven languages)
to file complaints against officers. But
such complaints are not protected by
absolute immunity. California state law
allows police officers to sue complain-
ants for defamation.
We Will Miss Him....................13
The First Amendment and media law
community was saddened to learn of
the untimely death of Dick Goehler,
who served as forum chair between
2006-2008.
SLAPP Redux .........................15
A recent decision from the California
Court of Appeal may be a welcome
rebuke of Dyer v. Childress.

FCC Open Internet Order:
Is Net Neutrality Itself
Problematic for Free Speech?
SAMUEL L. FEDER AND LUKE C. PLATZER

In recent years, the demand for
online video and gaming has grown
exponentially, creating a lucrative
market for delivering such services to
consumers. These types of services,
which require high amounts of
bandwidth, are more sensitive to de-
lays in upload and download speed
than many other forms of data traf-
fic. As anyone with an online Netflix
subscription can attest, a poor
transmission can cause the quality
of a streaming video to degrade or
to stop a movie altogether; in many
fast-paced online multiplayer games,
even a second's slowdown in the
responsiveness of a player's Internet
connection can be the difference
between virtual life and death. Voice-
over-Internet-Protocol (VolP) calls
similarly can suffer degradation if
sufficient bandwidth is not available.
Many other bandwidth-intensive
Internet applications, on the other
hand, such as online file sharing or
web browsing, are more tolerant of
a slow or erratic Internet connection
because slight delays in the delivery
of content are less likely seriously to
impact the user experience.
Companies that provide Internet
and cable television service realized
years ago that they could use their
IP-enabled transmission facilities to
offer dedicated VoIP services and
that those VoIP services would be
able to offer much better reliability
than VoIP calls that traverse the
public Internet because the network
operators could design the systems

to ensure that their VolP transmis-
sions had adequate bandwidth for
quality transmissions. As the popu-
larity of using the Internet to watch
movies and play video games online
has grown, it seems likely that these
companies will also seek to provide
on-demand video and gaming as
dedicated services (i.e., not over the
public Internet). Entrepreneurial
companies are also expected to de-
velop additional ideas for delivering
content in innovative ways.
The future of these new forms of
content delivery likely will be shaped
not only by market forces but also by
actual and threatened government
(Continued on page 20)
Samuel L. Feder is a partner in the Wash-
ington, D.C, office of Jenner & Block and
is cochair of the firm's Communications
Practice. He previously served as general
counsel of the Federal Communications
Commission (FCC). Mr. Feder regularly
represents cable, telecom, and technology
companies before the FCC and in litiga-
tion. Luke C Platzer also is a partner in
the Washington, D. C, office of Jenner
& Block and is a member of the firm's
Creative Content and Communications
Practices. He represents television and
motion picture studios, record labels, and
cable companies in intellectual property
litigation and regulatory issues arising on
the Internet and other media platforms.
The authors represented Cablevision
Systems Corp. and the Recording Industry
Association of America before the FCC in
the proceedings discussed in this article.

June 2011 0  Communications Lawyer 0   1

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