Comparative Telecommunications Law

Spring, 2007Prof. Karl Manheim1: Introduction to

Telecommunications

Copyright © 2007

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Course MechanicsWeb site: http://classes.lls.edu/spring2007/ctl-manheimText: Comparative Telecommunications Law (2007) Document Supplement Other materials on the websiteContact info: Email: karl.manheim@lls.edu Tel: (h) 051-1998-0088 (m) 33-3856-4958

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What Is TelecommunicationsDefined tele - afar communcation - exchange of information

Includes – distant information transmission Typically by radio wave (air, wire) or light (optical fiber)

Related to Print media (newspapers) Entertainment media

Records (vinyl) Film (acetate) Audio & video tapes (mylar) CDs & DVDs (plastic)

Telecom agencies may regulate these non-telecom industries to further competition policies

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Why Telecommunications Law

One of the largest economic sectors in the developed world (5-10% of GDP) Vital ingredient of international trade Truly globalized industrySocial Importance / Human RightsCompare Government Structures/Polices Especially in economic and competition lawLaw Practice Growth area, especially in conjunction with

Internet, IP & Entertainment Law

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Evolution of Telecommunications

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Telecommunications at Home

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Basic InquiriesFor Each Telecom Industry Technology (basic) Economic Policies Regulatory Structures & Laws

Judicial ReviewJudicial Review

Role of Industry RegulatorsRole of Industry Regulators• Promulgating RegulationsPromulgating Regulations• Assuring ComplianceAssuring Compliance

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Telecom IndustriesRegulated Broadcast Cable Satellite Video & Radio Wireline Telephony Wireless Telephony Advanced Services

Integration ImplementedUnregulated Internet Entertainment (VHS, DVD, CD, Games)

Why do we regulate these industries?

Technological necessity

Vital parts of national economies,

sov’gntyPublic Policy

civic virtue, public safety, social welfare

Why don’t we regulate these industries?

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Economics of Telecom Industries

TelephonyBroadcastCable MMDSDBSLPTVVHS/DVDInternet

SubscriptionFree - Advertiser SupportedSubscription / Advertising / PPV

“Subscription / Advertising / PPVCommunity / AdvertisingPurchase / LicenseSubscription Access + Mostly free content

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Technologies of Freedom Print Media Government & Church Speech (2d - 17th C)

Firm Movable type (15th C)

Have electronic

communica-tions

followed this path?

This gave way to this

Index Expur-

gatorious

De Sola Pool(1983)

Public (distributed) Speech Goverment & church control/censorship

Licensing (prior restraint) (16th - 18th C) Punishment for bad words (Star Chamber) (16th) Taxation (e.g., Stamp Act) (18th C)

Free Speech & Press (1st Amend, 1791) Copyright

Mass Media Industrialization/Commercialization/Commodification

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The Information SocietyWorld Summit on Info Society (WSIS) Organized by UN

Geneva, 12/03 Tunis, 7/05Principles Information as a human right; tool of freedom

Person centered (per Declaration of Human Rights) Technology-based (ICT) Distributional equality (not just “digital divide”) Quality of Life / Sustainable Development Democracy promoting (freedom of speech/opinion)

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The Information Society Elements of IS Connectivity

Universal Service (affordable) Access to broadband, electricity, postal services

Including access in public places Network Infrastructure

Robust, scalable Standards-based (interoperability)

Competition Investment, productivity IP protection

Regulation

Engineering

Economics

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The Information Society Elements of IS Public Interest Governance

Spectrum management Internet management

Sovereign control (Transnational? Deregulation?) WGIG / ICANN

Freedom of speech, press, information Independence, pluralism and diversity

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The Information EconomyTechnological Convergence Every information format over every technology

Digital revolution Dominance of the Internet (Video, Voice, Data/Text) Wireless vs. wireline

Economic Convergence (Markets) Services (eCommerce) Mega Mergers

Engine of growth? (Telecom upheavals) Ubiquity (democratization?) of information

Cultural hegemony (language?)

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The Information EconomyRegulatory Convergence (removing barriers) National

FCC restructuring E.g., “Common Carrier Bureau” now “Wireline Competition”

New National Regulatory Agencies (NRA) E.g., Telecom Regulatory Authority of India (1997)

Transnational EC Directorate Gen’l for Information Society & Media

E.g., “Television without Frontiers” Directive International

UN and ITU ICANN

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Regulation in the EURecasting the Regulatory Mission From Command/Control to Econ

DevelopmentRole of ICT in economic development Telecom bust of 2000-2002

Over-investment / Bubble Over-bidding at auction (inadequate valuation models)

Market restructuring Broadband penetration

Emergence of 3G

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Regulation in the EURegulatory Policies Unifying & streamlining regulatory regimes Competition replaces command & control

“Regulatory forbearance” Enhanced use of ICT by EU governments

Especially the Web <Bologna>Special concerns of Union Maintain sovereignty Accommodate Accession Countries

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Major Policy Issues in EU Telecom

Intellectual Property (IP) rightsDigital Rights Management (DRM)Trust & Security (privacy)Interoperability and StandardizationSpectrum ManagementDigital DivideNational Buy In (EU Framework Directive)

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Comparative Connectivity

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Legal Developments in the US

Wireless Ship Act of 1910 Titanic DisasterRadio Act of 1912 Department of Commerce

Emergence of BroadcastingRadio Act of 1927 Establishing the Federal Radio Comm’nCommunications Act of 1934 Establishing the FCCTelecommunications Act of 1996

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Hoover v. Intercity Radio (1923)

Licensing under the Radio Act of 1912 Authority of Executive Agency

Ministerial and enforcement Not discretionary

Sec. of Commerce could not create any new policy Ergo, could not impose license conditions, other than

those specifically stated in the Act He could:

Select wavelengths, so as to minimize interference He could not:

Set power, time or other restrictions, to minimize interfer. Result: “tragedy of the commons”

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Trinity Methodist C v. FRC (1932)

Licensing under the Radio Act of 1927 Statutory standard:

“Public interest, convenience and necessity” Derivative of early Common Carrier regulations

Compare discretion under this standard w/ Hoover FRC denies renewal

Programming was “sensational” (sacreligious) Content Regulation?

§ 326 Nothing in this Act shall be understood or construed to give the Commission the power of censorship over the radio communi-cations or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech….

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Trinity Methodist C v. FRC (1932)

Licensing under the Radio Act of 1927 Holding

Licensing decisions on content not contra 1st Amd. Objectionable, defamatory and false speech not protected Shuler could still speak, just not on the public airwaves

Radio communications were Interstate Commerce Result

“Public interestPublic interest, convenience & necessity” became the mantra for content regulation Standard for judicial review => “reasonableness”

Licensing assured political orthodoxy on the air Compare British Licensing Act

Red Lion

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BBC v. Wireless League (1926)

Radio licensing by Postmaster General Public utility serviceExtent of broadcast license Efficient transmission of “broadcast

matter” No changes without PG consentReception license Radio sets taxed at 10 shillings/year Revenue shared with broadcaster

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Legacies of the 1927 Radio ActLicensing Financial and technical standards

favored large commercial broadcasters & wealthy Content regulation

“public interest” standard favored mainstream programming

Renewal Expectencies If played by the rules, renewal was automatic Most licenses today derive from 1927 grantees

“Diversity” of programming exists in name only Broadcast never achieved its promise of pluralism

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1934 Communications ActCreated the FCC As “independent agency” Consolidated all regulated communicationsSet (continued) basic standards public interest, convenience, & necessity 47 USC §151 - Congressional PurposeStill the governing law Amended many times

e.g., Telecommunications Act of 1996

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Economic ModelsGovernment Ownership Publicly-owned natural resource (public good)

Model for spectrum use Operational control

by Government (e.g., BBC) by Private Parties under Govt License (US

broadcasters)Private Ownership Unregulated - free market

Model for Internet Regulated (e.g., public utility)

Model for wireline telephone industry, cable TV

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Regulatory PoliciesPromote the Public Interest Public Safety & National Security Civic Virtue

democratic values self-governance privacy Informed choice

educational Utilitarian Efficiency

greatest service & quality at lowest cost Promote new technologies (“technology forcing”)

Control the public discourse

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Cultural Impact of High Technology

Reading/viewing/listening habits Threat to print media Ways of learning/thinkingCorporate political influenceGlobalization Nations into Markets Cultural hegemony“Digital Divide”Privacy

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CoveragePrescribed II - Frameworks for Telecom Governance III - Competition in Telecommunications IV - Spectrum ManagementSelected V - Broadcast VI - Cable and Satellite VII - Telephony (wireline & wireless) VIII - Broadband IX - Internet