Craig A. Johnson
A first-rate summary of some of the sticky issues of the bill other
Date: Fri, 9 Feb 1996 10:45:03 -0600
Subject: Telecom Post #21
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Free Speech Media, LLC
Computer Professionals for Social Responsibility
February 9, 1996
Compiled, written, and edited by Coralee Whitcomb
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The Telecom Post is posted more or less weekly. My apologies
1. The Telecommunication Bill has passed
2. Open Video Systems
4. Intellectual Property Legislation
THE TELECOM BILL
As you may have heard by now, the Telecommunications Reform Act
of 1996 was passed by the House and Senate on February 1, 1996.
It was signed into law by President Clinton on February 8, 1996.
The bill passed the House with a vote of 414-16 and the Senate
by 91-5. I don't have a list of the opposing reps - but my hero
Ed Markey (D-MA) voted for it and publicly hailed it afterwards.
Opposing Senators were John McCain (R-AZ), Russell Feingold
(D-WI), Patrick Leahy (D-VT), Paul Simon (D-IL), and Paul
Remember way back when we thought the a 20% set aside for public
use was possible and its reduction to 5% was a loss? We've lost
a lot of ground since then. Those of us who have followed the
journey of this telecommunication rewrite must keep those
concepts alive at the local level. If we are to continue
fighting for an information infrastructure that empowers rather
than brainwashes, the battleground will now be in hearing rooms
of public utility commissions, state houses and city halls - not
in Washington DC. It means that we can no longer solely rely on
the valiant efforts of those inside the beltway who have gone to
great lengths to beat some sense into our national
representatives. We, the grassroots, must now beat the drums
ourselves. We must identify what opportunities exist to be
heard, represent our interests intelligently, and actually show
up to testify.
While it will take many, many local battles to accomplish what
decent federal telecommunication reform would have done in one
stroke, the playing field is a little more level with regard to
special interests since local legislators seem to care when a
constituent complains. We've developed a truly sophisticated
online approach to self educate and devise stategy at the
national level. In fact, I think we've proven through this
fight just how empowering this medium is for renewing citizen
action. Our lessons must now be replicated at home.
CONTENT CONTROL - was censorship
Almost a year to the day after the Exon amendment was introduced
to the horror of the online world, very similar language was
voted into law. Viewing the Internet as an equivalent medium to
broadcast TV, the standard of "indecency" will be used to
evaluate appropriate material for posting. Who determines the
definition of indecency? We shall soon see. The public
interest community will not allow this to go unchallenged.
Carriage providers are somewhat protected from criminal
liability through a list of defenses outlined in the
legislation. But content producers - Time Warner, Disney,
American Medical Association, support groups, you, me - are not
protected. This topic has been discussed at length and is far
from over. There are some very interesting constitutional
challenges ahead as those who were swept into cyberporn hysteria
by Martin Rimm find more and more of their daily information
disappear from the wires. This provision also allows cable
operators the right to refuse public and leased-access programs
they deem indecent. The resolution of this issue will do much
to determine what category(s) the Internet finally falls into -
one way broadcast, limited response capability, or full,
Many of us see technological fixes as the obvious answer to the
content control question. The V chip will now be implanted into
every new TV set sold. The broadcast industry is asked to
develop a ratings system in one year - if they don't, the
government will. A program's rating must be broadcast with the
show. The good news is that there will finally be a means to
get the message to broadcasters that the real viewing audience
will decrease when parents can effectively filter their kids TV
fare. The bad news is that the V chip will only exist in new TV
sets and only allow a single rating system. It might be a far
more effective mechanism if multiple rating systems were
possible so homes could better customize their TVs to reflect
their personal "family values". Expect to see a challenge from
the broadcasting industry on this.
What began life as the Snow-Rockefeller amendment in the Senate,
made it through to final passage. Schools, libraries, and rural
health centers will be provided access at "affordable" rates.
These rates are to be determined by a Joint Board that will
continually review local situations to. The success of this
language is due in large part to the heroic efforts put forth by
many public interest groups coupled with the lack of fight put
up by the Regional Bell Operating Companies (RBOCs).
Much concern was expressed early in the game over the tendency
of access providers to carve out certain neighborhoods for
service due to income levels, race or ethnicity. Some language
prohibiting this practice did make it into the bill but one must
prove discrimination on the basis of race, ethnicity, etc. has
taken place. - very difficult to do.
No cap on the number of stations owned by the same person.
One owner can reach up to 35% of American homes, up from 25%
An existing network can start a new network but not buy as
second existing network
Relaxation of rules preventing TV & radio ownership in the same
Allows TV and cable ownership in the same market
No national ownership limits
In markets of 45+ stations - 8 can share a single owner
In markets of 30-44 stations - 7 can share a single owner
In markets of 15-29 - 6 per owner
In markets of 14 and under - 5 per owner
TV and radio broadcast licenses will be easier to renew and
terms will be longer than previously. New entrants need not
even be considered unless it has decided not to renew an
Telephone companies can buy cable companies in non-urban areas
of under 50,000
Telephone can now offer video services (no longer known as video
dial-tone, now known as "open video systems).
Telephone companies can chose to be regulated as cable companies
or as an open video system.
Cable companies can offer telephone services. Telephone
companies are required to interconnect with these systems,
provide number portability, and other cooperative efforts.
Rates for the extended basic tier of large cable companies will
be deregulated in three years.
Cables systems with under 50,000 subscribers are deregulated
If a telephone company creates effective competition in any way
other than direct broadcast satellite, the cable company is
released from regulation. Rate increases in the $3-$6/month
range are already anticipated.
A little known victory was won by cities in the 24 hours
preceding passage of the bill. The right to charge
telecommunication providers for the use of right-of-ways was
ensured. This gives municipalities the right to negotiate for
institutional networks or fees in the same spirit as today's
cable franchise arrangements. These will be local fights but
provide a means through which public interests can be served.
OPEN VIDEO SYSTEMS
The new acronym from this legislation is OVS. Should a
telephone company decide to offer video, it can choose to be a
cable system, subject to cable regulation, a common carrier, or
an OVS. OVS status requires that adequate capacity be made
available to all that are able to pay and that the carrier
cannot discriminate "unjustly" or "unreasonably". If demand is
higher than the telco's capacity, it must limit its own
selection of programmers to one third of capacity. It must
comply with many of the same rules cable systems are required to
follow but are free from pricing regulation and the need to
obtain local franchises. The Alliance for Community Media won
the requirement for OVS systems to provide Public, Educational &
Government (PEG) access.
OVS is a mixed bag. It includes public interest aspects of
cable regulation and nondiscrimination of common carriage.
However, without rate regulation, discrimination against the
majority of newcomers to the video market is a given.
Quite frankly, I was fooled by the spectrum issue. I suspected
Dole's last minute balking at the broadcast spectrum giveaway to
be a ruse to defeat the bill. After looking at a variety
sources, I developed a theory that telecom reform was to be a
victim of election politics. Murdoch was unhappy about the bill
- he is lined up to get the same treatment as the other
networks. Did you notice how quiet Gingrich got all of a
sudden? Last fall he was desperate to get this legislation
passed - and suddenly he was no where to be found. Obviously he
couldn't reverse positions in support of his pal - but out of
the blue comes Dole complaining about the spectrum provisions.
It's not like the spectrum issue had been tucked in at the last
minute. With Clinton keen on signing the bill, a simple fade to
black seems like it might have served a number of Republican
I guess I was wrong. At the last minute Dole agreed to carve
the spectrum portion of the bill out for later consideration and
allowed the rest of it to proceed to the floor.
If you've put off understanding the implications of the spectrum
issue - now is the time give it another try. The broadcast
industry was given 6 MHz of spectrum with which to make the
transition from analog to digital TV or HDTV. Because HDTV was
not coming along as expected, the broadcast industry wanted to
use that 6 MHz to develop other lines of business. The
telecommunication bill allowed this to happen - the "spectrum
flexibility" issue. Public interest groups and finally Dole
threw up our hands and protested that this was far to valuable
an asset to simply give away. Either the new spectrum should be
returned for auction or the analog spectrum should be returned
for auction when released. The revenue from these auctions
could then go to reduce the national deficit or could be used on
behalf of the public interest.
This could be the last bastion of hope for public lanes on the
information superhighway. If we throw our efforts into making
this wish known we still stand a chance to preserve a small
portion of this infrastructure to serve as a tool of the people.
Having Dole as an ally is no small advantage. The broadcast
industry will be banking on the American people to find this
issue too complicated to get involved. Without our fanning the
flames throughout the process, there is little reason to believe
the public will see any benefit.
INTELLECTUAL PROPERTY LEGISLATION
Copyright and intellectual property laws are topics that
typically have difficulty inspiring a great deal of passion in
the general public. If we are to stay the course of this
increasing complicated telecommunication landscape, however, we
are going to need to brush up on the implications of upcoming
legislation. In November the Intellectual Property committee
of the IITF (Information Infrastructure Task Force) came out
with a White Paper addressing copyright issues. This White
Paper serves as the foundation for bill currently in committee
in both the House and Senate. It is also currently used as the
cited authority in the courts even though it is not yet law.
And it is expected to serve as the foundation from which
international copyright provisions will be developed this year.
The House bill (HR2441) is on the fast track and will see floor
action in February. Rep. Moorehead and Pat Schroeder (D-CO) are
anxious to leave this legislation behind as a legacy as they
leave office. The Senate is planning to allow more time for
discussion, but that may mean March action. (S1284)
Concerns over the approach taken by the IITF have prompted 28
organizations from the library and academic communities to
coalesce forming the Digital Future Coalition. DFC is alarmed
over the basic premise used in the White Paper and reflected in
the bills of equating intellectual property issues to those of a
child's understanding of property - the sharing of a toy
decreases enjoyment not enhances its value. It sees the
challenge of digital format as threatening and something to be
overcome rather than as potential for the greater good.
Copyrighted works are seen as requiring virtual containers
protected through fees and PIN numbers. In fact, the
repercussions of the White Paper would make digital information
less accessible than hardcopy.
As time goes by I'll try to explore more of the specific issues
concerning the DFC. Two that immediately come to the forefront,
however, is the "right of first sale" principle giving the
initial owner of a work the right to pass it along to another
and the fair use doctrine, allowing public browsing of
copyrighted material, personal copies, and transitory copies.
Changes in these doctrines will undermine the very premise on
which libraries operate. In fact, the approach taken by the
White Paper could make the act of simple browsing libelous.
Because individuals would be too difficult to chase, online
service providers (libraries, nonprofits, schools, as well as
commercial) would be held responsible for their users' behavior.
Networks would be required to monitor whatever appeared on
their users' screens. Have we just crossed into privacy waters
or what? Makes the "indecency" standard look narrow.
The White House, both houses, and industry support this
approach. The move to bring some sense back into the picture
must be made now and must be full force. To get involved and
lend your support to the efforts of the DFC, write to
•••@••.••• or call 202-628-8410.
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