Telecom draft
Sen. Ensign (R-Nev) has introduced a new telecommunications bill [warning, 72-page pdf]. As far as I can tell, the draft bill has the effect of removing traditional common carriage elements for telephone companies (required interconnection, tariffed rates), but keeping in place other requirements that will apply to everyone (telecommunications providers and applications alike). The bill foreshadows a telecom-mindset internet, in which the default setting is “everything not permitted is prohibited” — rather than the other way around.
The bill covers all internet applications by defining “communications service” to include
any service enabling an end user to transmit, receive, store, forward, retrieve, modify, or obtain voice, data, image, or video communications using any technology….
This covers email, IM, blogging software, and anything else you can think of that's offered to the public.
On p. 23, the Commission is explicitly given authority to make rules for any communications service about several topics, including E911, “the use, sale, and distribution of consumer proprietary network information” (in other words, privacy rules), and access for the disabled (both hearing and speech). On p. 34, service providers that use telephone numbers (in any way) are required to provide number portability.
The Commission's authority under Section 230 (which says that online service providers should not be treated as publishers of information they don't create) remains, but I can't tell what happens to the preemption or immunities that that section creates. The FCC's CALEA authority remains too. But the universal service section of the prior act is skipped, signaling that a universal service framework couldn't be worked out in time for this bill.
The bill says squarely that no government authority can require any “facilities-based communications service provider” (any company that runs its own network, like a telephone company or a cable company) to allow third parties to use its lines. This means that ISPs that are not owned by telephone companies will have a hard time staying in business.
Broadband providers (defined by the bill as anything ISDN-speed or higher) can deny consumer access to anything they want, as long as the service plan they're offering provides a rationale for doing so (which won't be hard). And broadband providers can make available vertically-integrated packages of content and applications. There's a strange section on p.21 that seems to say that if (and only if) a broadband provider offers naked internet access (without vertical customization), then its customers should be able to get to content and services offered by other people.
But there's no requirement that broadband providers make this kind of unconditional access available as an option for consumers. And broadband providers are welcome to block access to anything that is “unlawful.” “Lawful” applications and devices are fine. (Who decides what's “unlawful”?)
On p. 23, there's a strange section saying broadband providers can't prevent customers from using VoIP applications “offered by a competitor.” Is Skype a competitor of a broadband provider? Probably not — they don't operate in the same marketplace. (Who decides what a competitor is?) And what about other services that aren't VoIP — can they be blocked?
Although the draft includes pages of rules about removing local franchise obligations for telephone video services, and provisions about having municipalities run auctions for VoIP services, I'm focused on the breadth and vagueness of the “regulating the internet” provisions, and the potential for deep integration of broadband access with content and services.
Others have already noted (particularly Harold Feld) that the definition of “broadband” in the bill is a joke. If you have more than 64kb/second, you've got broadband. Suddenly, US broadband penetration figures don't look so bad.
Let's hope different bills show up promptly.
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