If you liked "Waiting for Godot," you've probably loved this
year's congressional telecom reform drama. Much like the characters
in the Samuel Beckett play -- who keep audiences waiting for the
appearance of the apparently important, but ill-defined title
character -- Congress kept us waiting most of this year for telecom
legislation to come on stage.
At the end of July, just before the August recess, the first
telecom Godot finally arrived -- a comprehensive reform bill by
Sen. John Ensign, R-Nev. The legislation takes a hefty whack at
outdated telecom rules. But this play is far from over: opposition
may be strong, and several more proposals are waiting in the
wings.
Talk of a major rewrite of telecommunications began last year, in
the wake of technological sea changes such as the rise of Internet
telephony. This led to an erosion of the old distinctions between
telecommunications services such as cable and telephony.
At the same time, structural changes in the industry raised hopes
for quick adoption of reform. Since the 1984 Bell system breakup,
telecommunications was engaged in a kind of industrial civil war
between the regional Bell companies and the long-distance firms,
with each side determined to get into the others' turf.
That civil war is now over. Early this year, the telecom
Appomattox came, with MCI and AT&T agreeing to be acquired by
Verizon and SBC, respectively. With the telecom sector no longer so
polarized, the time seemed right to clean out obsolete telecom
rules.
But, despite confident New Year's predictions that legislation
would be moving by spring, the flowers came and went with no
comprehensive reform bill even being introduced. A variety of
things -- ranging from the appointment of a new Federal
Communications Commission chairman to the review of the MCI and
AT&T acquisitions -- conspired to delay action.
Finally, Godot came in the form of Ensign's "Broadband Investment
and Consumer Choice Act."
Significantly, the legislation would not only replace the '96 act,
but the underlying 1934 Communications Act (with some
exceptions).
The legislation is keyed to two distinctions -- one that is
eliminated, and one created. The distinction between types of
communications providers is largely eliminated. Cable firms,
telephone companies and wireless firms would for the most part be
treated under the same set of rules. The distinction the bill
creates is between "basic" -- i.e. plain old voice -- telephone
service, and advanced services, such as broadband.
Basic service would remain regulated -- with rates capped, and
providers prohibited from diminishing service in any way. Other
services, however, would be largely freed from regulation.
Among other significant provisions:
Blocking of content -- such as VoIP service -- by broadband
providers is barred. The current duty of communications providers
to interconnect remains, but disputes are to be resolved through a
case-by-case complaint process, rather than through detailed
rulemaking by the FCC. "Unbundling" rules that required the forced
leasing of parts of a firm's network to competitors are scaled back
to cover the local loop which connects to customers.
In addition, the bill cuts back the state role in communications
regulation -- prohibiting state and local governments from
regulating the rates or service of telephone providers, except
where specifically permitted to do so. In addition, it eliminates
the local franchising requirement for video -- permitting telecom
firms and others to offer TV service without undergoing a gauntlet
of local approvals.
Lastly, the bill would place strict limits on local governments
that want to build their own communications services in lieu of
private providers.
The proposal is not perfect by any means -- it's already been
criticized by one VoIP provider for imposing new regulations on
these upstart services. And there's legitimate concern that its
raft of new terms and categories could lead to a bog of
litigation.
Despite the flaws, however, it's a big step in the right
direction.
Early reaction to the plan, moreover, has so far been surprisingly
positive. As expected, incumbent telcos weighed in swiftly with
glowing praise. But Kyl McSlarrow, head of the National Cable
Telecommunications Association also signaled openness -- commending
Ensign for his proposal.
This comity, however, is unlikely to last. Cable has fought hard
against letting telcos provide video, and the proposed new
broadband rules would actually increase regulation of cable modems.
The question is how hard cable will fight. And if the battle leads
to a re-polarization of the communications industry, the reform
show may end early.
Cable's not the only problem Ensign faces. Municipalities and
states are unlikely to surrender their turf without a fight. And
Senate Commerce Committee chair Ted Stevens, R-Alaska, may yet put
forward his own plan. His primary interest is ensuring support for
rural carriers, rather than deregulation -- not a good sign. Then
there's the House -- which is putting together its own reform plan.
It is likely to be deregulatory in nature, but has yet to be
unveiled.
So, while the appearance of Ensign's Godot into the telecom drama
is a welcome plot development, this play is nowhere near ending. It
certainly will be extended another congressional season. Reserve
your seats now.
James
Gattuso is a research fellow in regulatory policy at
The Heritage Foundation, a Washington-based
public policy research institute.
First appeared on Tech Central Station