May 15, 2006

Government: Definitions

Classic literature is judged by its ability to stand the test of time. Legislation that regulates technology rarely passes that test.

By Steve Effros

We've heard the phrase "the devil is in the details," a variant on "God is in the details." That could not be truer than when it comes to government telecommunications rules and regulations. Actually, it's not simply the details, it's the definitions.

If you look at the raging battles surrounding "rewrites" of the Telecommunications Act, or the court suits regarding cable, what you will notice most is they are about the definition of terms in the laws, rules and regulations. The problem is that when those laws and rules were written, the terms referred to then-current technology. As we know, by the time the ink is dry on regulations regarding telecommunications the technology has already moved on. So the challenge is to apply old words to new technology. It rarely works well.

You wouldn't think, for instance, that it would be hard to define "cable television." But there are now court suits over whether "IPTV" is "cable" for the purposes of applying rules that say cable providers must have a local franchise before they can offer "cable service." The most recent effort by AT&T to avoid the franchise requirement by arguing that its "IPTV" offering is not "cable" got thrown out of court in California recently. The decision did not rely on defining the term, however.

At the same time, AT&T is arguing its "IPTV" service is "cable" when the question arises in the context of copyright! So the definition changes depending on which law AT&T is relying on.

These arguments are not new. In the broadest sense, the FCC has been struggling for years to define the difference between an "information service" and a "telecommunications service." The intent is to regulate different (often new) services in different ways, to give new services some relief from older, encrusted statutes. It's a laudatory effort, but is bound to fail. Changing definitions to reflect new regulatory policies creates more confusion and additional layers of legal complexity.

Some in Congress are suggesting a better approach: Get rid of the complex rules and regulations now that the telephone, cable, satellite and broadcasting industries along with the Internet are competing vigorously with each other to deliver communications services of one sort or another to consumers. Let the market operate and use the antitrust laws to rein in any "bad actors." It's an idea worth considering, but since it would be a radical departure from telecom overregulation, and there are already several more traditional bills being considered, it's unlikely to get serious consideration in this congressional session. Of course that depends on your definition of "serious."

Steve Effros is a columnist and consultant in the cable television industry, and is a former FCC attorney and president of CATA. He can be reached at steve@effros.com.