Tech.gov: Congress Tries to Overhaul Cable--And a Lot MoreCongress wants to reform telecommunications and cable rules, but each branch has its own approach and neither covers all the needed bases.
Anush Yegyazarian, PC World
In short order, we'll see practically no difference between much of what AT&T and Verizon offer and what Cablevision and Time Warner do. So it makes little sense to have one set of rules for the first two companies and another set for the other two--slowing down deployment of IPTV and other new services in the process. Acknowledging these facts, Congress wants to unravel the tangled web of existing laws, simplifying some, doing away with others, and in some cases creating national standards that would replace state and local laws. The new laws would apply to each of these companies more or less in the same way, based on their video service plans.
It's an important and worthy goal. Reaching that goal won't be easy, given the complexity of the issues and the sheer volume of regulations that currently exist. The House of Representatives took that into account when it crafted its targeted reform bill, the Communications, Opportunity, Promotion, and Enhancement Act of 2006 (H.R. 5252), which it passed in June (I discussed a slightly earlier version of this bill in my May column). The bill focuses primarily on the video franchise process, with minor attention to VoIP service, net neutrality issues, and cities or states that offer residents such services on their own.
The Senate took the House bill and completely revamped it in the Committee on Commerce, Science, and Transportation. What came out of that committee was three times as long as what went in, and the bill even had a new name, the Advanced Telecommunications and Opportunities Reform Act of 2006, or simply the Communications Act of 2006. It reworks the cable/video franchise process, addresses net neutrality, and goes on to cover the universal service fund, cell phone taxes, the digital TV transition, communications access for troops overseas, online child protection, and much more.
Given the breadth of the Communications Act, I think it's unlikely to be passed by the Senate and reconsidered by the House by the end of this year's legislative session (especially since this is an election year). However, the two bills give us concrete points from which to evaluate what Congress intends, and whether the reforms would have the right impact.
Get Your IPTV Faster
Simplifying and expediting the video franchise process so that the market can get IPTV and greater video service competition is a primary goal of each bill. The House bill essentially does away with the local franchise system, making the FCC the clearing house for video franchise licenses across the country. Local government still receives its share of the licensing fee pot, and companies must abide by local construction/zoning laws as they build out.
The Senate takes a different tack: In its bill the local franchise system still exists, but a national, standardized form is required for any location. So potential licensees still have to send the forms to each location they want to operate in, and wait to hear in each case, but the paperwork should be more easily filed.
In both cases, approval is practically a given if you've completed the paperwork correctly, and decisions are rendered fairly quickly.
The Senate's nod to local government is nice; honestly, though, given that we are dealing with national operations, to me it makes more sense to do this on a national scale. Because local laws must still be obeyed and local government still receives its revenue, with the original House bill local agencies would get what they need and the process would better achieve its national-level streamlining goals. However, both approaches still treat satellite service differently than cable and IPTV, which must change in the long run.
Net Neutrality, Sort of but Not Really
Consumer advocates and numerous like-minded organizations have been increasingly trying to get Congress to pay attention to--and protect--network neutrality. Net neutrality advocates seek to ensure that any type of data traffic on the Internet is treated the same way, without some bits and bytes receiving preferential treatment because the originators paid for express service. (See my prior column on this topic.)
Congress has definitely turned its attention to the matter, but neither of the current bills accomplishes what net neutrality advocates hope for. The House bill, amended from the version that came out of committee, includes language that codifies some general principles the FCC sent out in a press release last year (see my February column for details). The FCC discussed in a general way what consumers are entitled to, and addressed the minimum level playing field that network providers must offer.
The Senate's version goes a bit further with a provision called the Internet Consumer Bill of Rights, which is more detailed than the FCC statement but more or less covers the same ground. However, the Senate version includes language preventing local, state, and federal government, along with ISPs and network providers, from discriminating and limiting or restricting consumer access based on religious, political, or similar content.
Though that's a nice safeguard, it really doesn't get at the heart of the problem: If network providers can regulate data packets based on who has paid for faster service, then established players with money have an edge and can marginalize innovative but cash-poor newcomers that lack the resources to obtain the fastest service for their sites. Moreover, nothing in the Senate or House bills would prevent, for example, a network provider that offers its own VoIP service from limiting or downgrading a competitor's service. If that provider doesn't actually make it impossible for a customer to use the rival VoIP service, it is safe under both bills.
As I've said before, I have no objection to network providers raising rates for bandwidth-heavy sites, such as increasingly popular video sites. Heck, I wouldn't object to a prioritization of certain kinds of traffic that need uninterrupted service to be of true value--such as video and music streaming--as long as it applied across the board. I'd even be willing to pay for it as a consumer if such services were very important to me.
But I don't want network providers deciding which content and service sites live or die--which would be the de facto state of affairs if such providers can regulate the speed of a site's traffic based on a premium they charge site owners. Yes, I could go to a sports or shopping site that doesn't pay the premium, as nothing prevents me from typing in a URL, but if my experience at such a site is worse than at rival sites that enjoy the faster service, I will eventually stop visiting the slower sites. That's what the providers implicitly sell.
Kids Get Label Protection
The Senate's bill also dips its toes into online child protection waters. As I've mentioned, I support the goal. But the Senate's provision seems too vague and too broad (note that significant portions of this provision have been introduced separately as the bill S. 3499 and its House equivalent, H. R. 5749, and S. 3432).
First, it prohibits Web sites that are primarily commercial from showing sexually explicit material on the front or home page of its site. So far, so good--there's nothing wrong with having a welcome page with no potentially harmful material and even some warning of what's within so that those visitors who wish to avoid the content can do so.
Then it directs the FTC to create a rating system with the aid of the Attorney General that sites with sexually explicit content would have to display, either as part of the site's code or as a symbol on the page so that visitors would be warned. The intent is to make it easier for visitors to know when they've stumbled on such a site, and to allow Internet filters to work more effectively. On the face of it, this seems like a good idea, or at least one that isn't all that bad.
The problem comes from the definitions of "sexually explicit," and the fact that serious criminal penalties are attached. The language in this bill, as the Center for Democracy and Technology points out in its letter to senators, mirrors that of the Child Online Protection Act; this act ended up embroiled in legal challenges, and the Supreme Court essentially struck it down (see an earlier column for details).
Everyone knows that Congress intends to target porn sites. But the wording of the bill makes it apply to any site with material deemed to be "sexually explicit" and "primarily commercial." A health site focusing on STDs would fall under this umbrella if it had banner ads, for example. And while I would agree that 8-year-olds shouldn't be looking at such a site, a 15- or 16-year-old could have very good reasons to take a look and should be able to get such information.
Worse, however, is the potential chilling effect on legal speech. If I ran a health site and was doing it on my own time--and mostly on my own dime--I would likely either slap the equivalent of an adults-only label on it to avoid potential problems or shut it down for fear that I wouldn't rate it appropriately and get prosecuted. Even if only a small percentage of site owners chose to do that, it would cause significant harm.
Moreover, a large number of porn sites aren't even based in the United States (the CDT claims that over half are in other countries) and wouldn't be affected by the legislation anyway.
But Wait, There's More!
The Senate includes a bunch of other items in its bill. For example, the bill revamps the universal service fund, which is supposed to help underserved areas and customers get telecommunications service. Under the bill, the fund would be used explicitly for broadband service, to encourage rollout. The FCC cancelled collection of the USF fee with DSL service; this act would bring the fee back and tack the extra $1 to $3 dollars onto cable and other high-speed broadband services as well. On the plus side, the Senate bill would make the moratorium on Internet-access taxes permanent, and would introduce a similar moratorium on cell-phone-access and mobile-services taxes.
Both the House and the Senate bills also help cities and other local agencies that want to provide broadband, wireless, video and other services to their residents. The House bill simply overrules state or local laws that would prohibit towns and cities from offering such services. The Senate bill is more cumbersome, and while it would prevent state laws from prohibiting municipal services, it strongly encourages cities and towns to work with a private company to provide such services, and makes the local government work hard to justify not working with a private company.
Finally, the Senate bill addresses the digital TV transition. It provides for advertisements, hotlines, labels, and other information for the public as the transition progresses; it also sets out to let people know the whens and whats, including information about the subsidy program for converter boxes that will allow people to watch digital TV when analog stations stop broadcasting. More important, however, it also authorizes the FCC to enact a broadcast flag to protect digital, copyrighted content (which courts said the FCC couldn't do without explicit congressional approval) and opens the door for similar protection in digital radio.
All in all, it's quite the lengthy bill, with many pluses and minuses. The senators were even prepared for it to be challenged (if it passes at all): It contains a provision that if one portion is challenged and is struck down by the Supreme Court, none of the other parts will be affected. My bet is that the provision will stay if this thing is passed into law in the next year.