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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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