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BLAST
Editor-in-Chief Associate Print Editor Associate Online Editor Contact Section
Section of Science and Technology Law Officers Chair Chair-Elect Vice Chair Secretary Budget Officer Section Delegates
Immediate Past Section Chair Section Past Chair Liaison |
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IN THIS ISSUE MAY 2001
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New FCC May Bring New Approach
To Technology Issues By the time this is published, four appointees of the new Administration will hold office at the Federal Communications Commission. One, new Chairman Michael Powell, served as a commissioner appointed by former President Clinton until his designation as chairman by President Bush. Mr. Powell has served as acting chairman since January. Three other commissioners, Kathleen Abernathy and Kevin Martin (both Republicans) and Democrat Michael Copps, are new. Democratic Commissioner Gloria Tristani will likely depart the Commission by year-end. Chairman Powell assumes office with several years of experience as a sitting commissioner. Two of the new commissioners, Ms. Abernathy and Mr. Martin, previously served in staff positions at the FCC and have remained active in the area. Mr. Martin also led the Bush Administration's FCC transition team. Mr. Copps worked on Capitol Hill for Sen. Hollings (D-SC), ranking Democrat on the Senate Commerce Committee that oversees the FCC. As a group of Washington insiders familiar with communications issues, they will get up to speed quickly. Although Mr. Powell has a generally deregulatory record as a commissioner, the position of chairman carries greater power, as in his new role he will be able to set the agency's agenda and to direct the activities of its many bureaus. As a result, Mr. Powell's views on technological issues, particularly those relating to the Internet, should be of particular interest to technology and communications lawyers. Mr. Powell's public remarks as a sitting commissioner (including since being tapped as chairman) evidence a thoughtful understanding of new communications systems such as the Internet and of the FCC's role in regulating the communications infrastructure that underlies the Internet. Indeed, Mr. Powell has stated that the public policy question is not "whether to regulate the Internet or not, as if that were a realistic choice" - federal, state, local, foreign, and international legislative proposals to do just that arise everyday - but rather is "how to regulate it responsibly in a manner that maximizes consumer welfare and does not stunt its infinite growth and innovation potential." As he has noted, the FCC historically has regulated the underlying infrastructure - the "rails" - on which the Internet rides. Mr. Powell has a deep interest in encouraging innovation. He frequently sprinkles his remarks with quotations from economist Joseph Schumpeter regarding the "creative destruction" of technological change. Mr. Powell sees the broadband digital migration - the convergence of communications with the computer that produces new broadband systems having far more capabilities that previous analog communications systems - fiber optics, DSL, and digital wireless networks - in that light. From his public statements, as well as his recent record as a sitting commissioner, it is reasonable to expect that Mr. Powell will look askance at regulations that seem to deter innovation in broadband digital services. In particular, expect the Powell Commission to look kindly upon innovations that promise to spur additional competition to current processes. Second, expect the Powell Commission to chart a more deregulatory course than his predecessors. Mr. Powell is much more likely than his predecessors to refrain from regulatory interventions, and he has remarked that deregulation is not a "dessert" awarded for good conduct but rather is a fundamental approach to governing. In particular, the Powell Commission is likely to manifest a deep skepticism about "speculative fear and uncertainty in this innovation-driven space" and a reluctance to conclude prematurely that a market failure is imminent. At the same time, Mr. Powell believes strongly in enforcing the rules of the game. To this end, he has called for the power to impose stiffer sanctions for violations of the local telephone competition provisions of the landmark Telecommunications Act of 1996, believing that the sanctions authorized by current law are too small. Third, Mr. Powell appears much less activist than his predecessors. Rather than launching new regulatory initiatives in the public interest, Mr. Powell appears much more inclined to defer to Congress's definition of the public interest in a given matter. Accordingly, do not expect the Powell Commission to seek new requirements such as obligating broadcasters to give free airtime to political candidates. Similarly, the Powell Commission is unlikely to achieve regulatory objectives by attaching "voluntary" conditions to mergers (witness the extensive "voluntary" conditions imposed on the recent SBC/Ameritech and America Online/Time Warner transactions), particularly in the absence of any clear grant of regulatory authority. Fourth, Mr. Powell's views on the need for the FCC to respond more quickly to the pressures of convergence and the speed of Internet time already have led him to commence a serious review of the agency's structure. The FCC is organized in bureaus whose names illustrate their legacy approach to regulation: Mass Media Bureau, Common Carrier Bureau, Wireless Bureau, International Bureau, Enforcement Bureau. Each bureau, in turn, applies legacy regulatory schemes. As a result, converging technologies operate under differing regulatory regimes. Today, how a service is regulated depends upon which bureau does so. For example, telephone companies chafe under the obligation to open their networks to virtually all comers, while high-speed cable access services generally have no such duty. Incumbent and competitive local exchange carriers operate under different regulatory requirements, and telephone companies are regulated differently depending upon whether they handle local or long distance traffic. In public remarks, Mr. Powell has indicated a willingness to consider a fresh approach and a sensitivity to the potentially adverse consequences of asymmetric regulatory schemes to competition and emerging markets. He has called for making FCC regulation more rational and greater use of the agency's power to forbear from unnecessary regulations. Perhaps as important, he also has called for the agency to act more quickly in order to better respond to the challenges of Internet time. By the time this appears in print, the Powell Commission will have several months under its belt and should have begun to make its mark. Inevitably, it will be the tough cases that test the new chairman's commitment to swifter agency action, to deregulating and rationalizing the agency's rules, and to separating the true threats to competitive markets from the speculative ones. Technology and communications lawyers will, of course, be paying close heed. Jurisprudent Therapy and the Role of Mental Health Science in Federal Sentencing In September, the Section cosponsored a presentation at the Federal Bar Association Annual Convention in Cleveland, on "Mental Health and Scientific Evidence." A substantial focus of this presentation involved the role of mental health science in federal sentencing. During the past two years, the Behavioral Sciences Committee has focused on a "Jurisprudent Therapy" model for analyzing issues in law and mental health. This perspective evaluates mental health science, mental health practice, and mental health roles in terms of their "jurisprudent" or "antijurisprudent" effects on those utilizing behavioral science expertise. Ever since the promulgation of the Sentencing Reform Act of 1984 (28 U.S.C. §994 et seq.), scientific mental health evidence has played a critical role in determining the proper assignation of punishment, within the context of the 1987 Federal Sentencing Guidelines ("Guidelines"). This role is most clearly apparent in the determination of "downward departures" (Howard, 2001). According to §5K2.13 of the Guidelines, a departure "may be warranted if the defendant committed the offense while suffering from a significantly reduced mental capacity," although three exceptions may attach. These involve:
In addition, §5K2.13 notes that "if a departure is warranted, the extent of the departure should reflect the extent to which the reduced mental capacity contributed to the commission of the offense." Professor Mark Howard of the Franklin Pierce Law Center provided a compelling overview of qualifying mental health diagnoses during our co-sponsored September presentation (reprised at the second International Conference on Therapeutic Jurisprudence in Cincinnati in May). Noting that the §5K2.13 definition of "significantly reduced mental capacity" involves "significantly impaired ability to (A) understand the wrongfulness of the behavior comprising the offense or to exercise the power of reason; or (B) control behavior that the defendant knows is wrongful," Professor Howard identified the following diagnoses as having qualified in various federal district and circuit courts: major depression, post-traumatic stress disorder, bipolar (manic depressive) disorder, schizophrenia, and obsessive-compulsive disorder. It is here that a jurisprudent therapy analysis attaches. If mental health experts are not apprised of those diagnoses that "qualify" in a particular jurisdiction for downward departure consideration, their opinions may be of little use to the parties retaining them (or to the court in which such evidence is proffered). In fact, as Professor Howard has identified, several diagnoses and conditions, although offered as qualified, have been determined insufficient. These include spousal abuse, low self-esteem, borderline intellectual functioning, suicidal tendencies, compulsive gambling, and AIDS or HIV-positive status. Attorneys retaining scientific mental health experts in this context are advised to provide not only an overview of cases pertaining to applications of the Guidelines, but also an up-do-date review of credentialing and disclosure issues, as these typically evolve more quickly than comparable state jurisdiction requirements (Drogin, 2000). Section members with an interest in the role of mental health evidence in legal contexts are encouraged to contact the Behavioral Science Committee. |
