New Regulatory Framework After IP Transition Requires Fresh Thinking, TechFreedom Panelists Say
Something major will have to happen to spark a new Communications Act, said panelists at a TechFreedom event Monday. In the current atmosphere of split government, major legislation is very difficult to pull off, said professor Christopher Yoo of the University of Pennsylvania Law School. “A new Congress” would definitely help, he said. Something that changes the environment will also be needed, panelists said, like a new technology or a court case. “You may need some major precipitating event” that would change the relative value that different people would place on getting a deal versus not doing so, Yoo said. Hank Hultquist, AT&T vice president-regulatory affairs, agreed: Something needs to happen so that having legislation is important enough to enough people that it cannot be blocked any longer, he said.
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The questions are what would a new Communications Act look like, and whether to apply traditional telecom regulations to new IP technologies, panelists said. Legislators should identify what kinds of regulation should apply to various services, such as VoIP, video chat and broadband Internet access service, Hultquist said, rather than having an abstract definition of “telecom service” that needs to be applied to new services.
A lot of people think the Communications Act is flexible and the FCC has a great deal of leeway on how best to apply the laws, but that’s not necessarily true, Yoo said. He mentioned the regulatory battles potentially faced by console video game manufacturers like Microsoft, maker of Xbox, that would have to affirmatively argue that providing a voice-chatting feature doesn’t make them a telecom service subject to regulation. “If we start playing this game” of deciding what new services to apply telecom regulation to, “every person that provides a service that resembles or replaces something” will have to fight that definitional battle, Yoo said.
There’s a broader matter of unintentionally overinclusive regulation, Hultquist said. “The FCC cannot willy-nilly” decide what regulatory door to use to regulate voice, he said. If the FCC determined VoIP is a telecom service, the ramifications would be “immense,” he said: You can’t just declare VoIP is a telecom service “without hitting a bunch of services you didn’t intend to hit.” Technologically speaking, Skype and Vonage share a lot of similarities, he said. Using Communications Act Section 251(e) and ancillary authority is the only way the FCC can really go, he said: Determining that voice and video are telecom services when they're IP-based would have a broad impact on the IP ecosystem.
Regulators will have to think differently about how to deal with some problems related to the spread of IP technologies, such as their lack of independent line power, panelists said. Every telecom lawyer looks for a telecom policy solution to the problem, but perhaps the solution lies elsewhere, said TechFreedom President Berin Szoka. As long as trees fall, power lines will go down, he said: Perhaps it’s time for a conversation about the potential of dig-once practices -- putting broadband and electricity under the road -- to considerably increase resilience of both the telecom and power networks, he said.