Comparative Telecommunications Law
Spring, 2007
Prof. Karl Manheim
1: Introduction to Telecommunications
Copyright © 2007
Course Mechanics
Web site:
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http://classes.lls.edu/spring2007/ctl-manheim
Text:
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Comparative Telecommunications Law (2007)
Document Supplement
Other materials on the website
Contact info:
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Email: karl.manheim@lls.edu
Tel: (h) 051-1998-0088 (m) 33-3856-4958
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What Is Telecommunications
Defined


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
Telecom agencies
may regulate these
non-telecom
industries to further
competition policies
 Records (vinyl)
 Film (acetate)
 Audio & video tapes (mylar)
 CDs & DVDs (plastic)
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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 industry
Social Importance / Human Rights
Compare Government Structures/Polices

Especially in economic and competition law
Law 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 Inquiries
For Each Telecom Industry
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Technology (basic)
Economic Policies
Regulatory Structures & Laws
 Role
of Industry Regulators
• Promulgating Regulations
• Assuring Compliance
 Judicial
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Review
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Telecom Industries
Regulated


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Broadcast
Cable
Satellite Video & Radio
Wireline Telephony
Wireless Telephony
Advanced Services
 Integration Implemented
Unregulated


Why do we regulate these
industries?
Technological necessity
Vital parts of national
economies, sov’gnty
Public Policy
civic virtue, public
safety, social welfare
Why don’t we regulate
these industries?
Internet
Entertainment (VHS, DVD, CD, Games)
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Economics of Telecom Industries
Telephony
Subscription
Broadcast
Free - Advertiser Supported
Cable
Subscription / Advertising / PPV

MMDS
DBS
LPTV
VHS/DVD
Internet
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Subscription / Advertising / PPV
Community / Advertising
Purchase / License
Subscription Access + Mostly
free content
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Technologies of Freedom
De Sola Pool
(1983)
Print Media

Government & Church Speech (2d - 17th C)
 Firm Movable type (15th C)

Public (distributed) Speech
 Goverment & church control/censorship
Index Expur-
Licensing (prior restraint) (16th - 18th C)
gatorious
th
 Punishment for bad words (Star Chamber) (16 )
th C)
 Taxation (e.g., Stamp Act) (18
Have
electronic
 Free Speech & Press (1st Amend, 1791)
communica Copyright
tions followed
this path?


This
gave way
to this
Mass Media
 Industrialization/Commercialization/Commodification
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The Information Society
World Summit on Info Society (WSIS)

Organized by UN
 Geneva, 12/03 Tunis, 7/05
Principles

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

Regulation
Connectivity
 Universal Service (affordable)
 Access to broadband, electricity, postal services


Including access in public places
Network Infrastructure
Engineering
 Robust, scalable
 Standards-based (interoperability)

Competition
Economics
 Investment, productivity
 IP protection
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The Information Society
Elements of IS

Public Interest Governance
 Spectrum management
 Internet management
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Sovereign control (Transnational? Deregulation?)
WGIG / ICANN
Freedom of speech, press, information
 Independence, pluralism and diversity
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The Information Economy
Technological 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 Economy
Regulatory Convergence (removing barriers)

National
 FCC restructuring
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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
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E.g., “Television without Frontiers” Directive
International
 UN and ITU
 ICANN
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Regulation in the EU
Recasting the Regulatory Mission

From Command/Control to Econ Development
Role of ICT in economic development

Telecom bust of 2000-2002
 Over-investment / Bubble
 Over-bidding at auction (inadequate valuation models)

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Market restructuring
Broadband penetration
 Emergence of 3G
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Regulation in the EU
Regulatory Policies

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Unifying & streamlining regulatory regimes
Competition replaces command & control
 “Regulatory forbearance”
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Enhanced use of ICT by EU governments
 Especially the Web <Bologna>
Special concerns of Union

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Maintain sovereignty
Accommodate Accession Countries
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Major Policy Issues in EU Telecom
Intellectual Property (IP) rights
Digital Rights Management (DRM)
Trust & Security (privacy)
Interoperability and Standardization
Spectrum Management
Digital Divide
National 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
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Titanic Disaster
Radio Act of 1912
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Department of Commerce
 Emergence of Broadcasting
Radio Act of 1927

Establishing the Federal Radio Comm’n
Communications Act of 1934
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Establishing the FCC
Telecommunications Act of 1996
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Hoover v. Intercity Radio (1923)
Licensing under the Radio Act of 1912
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Authority of Executive Agency
 Ministerial and enforcement
 Not discretionary
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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:
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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
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Red
Lion
Holding
 Licensing decisions on content not contra 1st Amd.

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Objectionable, defamatory and false speech not protected
Shuler could still speak, just not on the public airwaves
 Radio communications were Interstate Commerce

Result
 “Public interest, convenience & necessity” became
the mantra for content regulation

Standard for judicial review => “reasonableness”
 Licensing assured political orthodoxy on the air
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Compare British Licensing Act
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BBC v. Wireless League (1926)
Radio licensing by Postmaster General
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Public utility service
Extent of broadcast license
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Efficient transmission of “broadcast matter”
No changes without PG consent
Reception license
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Radio sets taxed at 10 shillings/year
Revenue shared with broadcaster
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Legacies of the 1927 Radio Act
Licensing
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Financial and technical standards
 favored large commercial broadcasters & wealthy

Content regulation
 “public interest” standard

favored mainstream programming
Renewal Expectencies
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
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 Act
Created the FCC

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As “independent agency”
Consolidated all regulated communications
Set (continued) basic standards

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public interest, convenience, & necessity
47 USC §151 - Congressional Purpose
Still the governing law
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Amended many times
 e.g., Telecommunications Act of 1996
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Economic Models
Government 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
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Regulated (e.g., public utility)
 Model for wireline telephone industry, cable TV
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Regulatory Policies
Promote 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

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Threat to print media
Ways of learning/thinking
Corporate political influence
Globalization


Nations into Markets
Cultural hegemony
“Digital Divide”
Privacy
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Coverage
Prescribed
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II - Frameworks for Telecom Governance
III - Competition in Telecommunications
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IV - Spectrum Management
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Selected
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V - Broadcast
VI - Cable and Satellite
VII - Telephony (wireline & wireless)
VIII - Broadband
IX - Internet
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