Regulatory parity isn’t as easy to achieve as some might think an...

& Policy Analysis. Writing in the latest issue of the Federal Communications Law Journal (Vol. 56, No. 3), Ismail said regulatory parity is a favorite argument by policy advocates but there are times when the FCC can’t achieve parity because: (1) Disparate treatment is required by statute “such as… the content restrictions that apply to broadcasters but not to cable or DBS operators, the interconnection and unbundling rules that apply to ILECs but not to CLECs.” (2) Laws passed by different jurisdictions -- for example states vs. the federal govt. -- result in different treatment of similar services. “There may be disparities in the licensing fees and entry conditions applicable to DBS operators, who are licensed by the Commission, and cable operators, who are licensed by local franchise authorities,” the paper said. (3) “The most significant barrier to achieving regulatory parity is that it is rarely the case that two types of providers are so alike that they must be treated in exactly the same manner.” Ismail said “trying to achieve parity in these circumstances may induce paralysis in policy-making.” The 47-page paper looked at several types of regulations in telecom, video and data services and concluded: “The lesson from this survey is that the constraints on the Commission’s ability to achieve regulatory parity in communications policy may be underappreciated… A better approach would be to resolve the issues on the basis of specific rules or policies, rather than to seek to eliminate alleged disparities. In legal terms, this suggests a focus on ‘rights’ rather than ‘equality.’ It is unlikely, however, that policy advocates will banish the term ‘regulatory parity’ from their working repertoire. Like the term ‘equality,’ the term ‘regulatory parity’ has a powerful effect on listeners.” Given the difficulty in erasing such disparities, “the strongest arguments are likely to be those that seek to apply a rule to two closely situated parties, in areas where a policy-maker has the discretion to act,” Ismail said: “If the comparison is made between two services that are not closely similar, are regulated by different jurisdictions, or are subject to different laws enacted by Congress, disparities are sure to exist, and policy-makers will likely be unable to eliminate them… Simple rules are not sufficient to solve these complex disputes; there is no substitute for common sense and case-by-case analysis.” The article represented Ismail’s views and “does not necessarily reflect the views of the FCC, any FCC commissioner or other staff.”