I have a new favorite case. It is called Hush-a-Phone v. FCC, and it was decided in 1956 by the D.C. Circuit.
AT&T filed a tariff (a document that it hoped the FCC would approve that listed the terms and conditions and prices for AT&T's services) with the FCC. One of the terms of the tariff was that no devices that hadn't been provided by AT&T could be attached to AT&T's phones. If a “foreign attachment” was made to a phone, the telephone company claimed the right to suspend or terminate phone service.
Hush-a-Phone complained to the FCC in 1948 (note the long delay between the complaint to the FCC and the final decision — eight years). You see, Hush-a-Phone had for 25 years made a cup-like device that could be attached to phones so that speakers could have private conversations — “It is designed to permit the speaker to confine his voice within the enclosure formed by the device so that it is not heard by persons in the speaker's vicinity, thereby providing privacy of conversation and office quiet. It is also designed to improve telephone reception in noisy locations by keeping surrounding noises out of the telephone transmitter and thus out of the telephone circuit.” But when vendors heard the AT&T threats, they stopped selling Hush-a-Phones. Hush-a-Phone wanted the right to sell these attachments.
The FCC dragged its feet. It held hearings. It took the matter under advisement — for more than four years. FCC finally emerged with the opinion that the use of Hush-a-Phones impaired telephone service. How? Not by hurting any of the facilities of the phone company, but because the device was “deleterious to the telephone system and injures the service rendered by it.” Apparently the Commission felt that when Hush-a-Phone was used the people on the other end of the conversation couldn't hear the Hush-a-Phone-ee clearly.
The court (Judge Bazelon) wasn't persuaded.

The question, in the final analysis, is whether the Commission possesses enough control over the subscriber's use of his telephone to authorize the telephone company to prevent him from conversing in comparatively low and distorted tones. . . .

To say that a telephone subscriber may produce the result in question by cupping his hand and speaking into it, but may not do so by using a device which leaves his hand free to write or do whatever else he wishes, is neither just nor reasonable.

The court found that the proposed tariff was an attempt to prevent the user's right to use his telephone in a privately beneficial way without being publicly detrimental. AT&T had said that it had a device that subscribers could use to achieve a quiet line (push-to-talk), but the court noted that

The mere fact that the telephone companies can provide a rival device would seem to be a poor reason for disregarding Hush-A-Phone's value in assuring a quiet line. The Commission's approach is well calculated to raise those very questions under the antitrust laws which petitioners seek here to raise, but which, in view of our decision, we do not reach. It also tends to raise another question which we do not reach, namely, the reasonableness of a tariff which places control over petitioners' business in the hands of intervenors in the first instance.

It's a very brief opinion — just three pages — and it is probably well-known to FCC fans. But I'd never heard of it before, and I'm cheering:

A system whereby intervenors may market equipment until such time as the Commission orders a halt, while petitioners may not market competitive equipment until the Commission givers them an authorization, seems inherently unfair. The unfairness is enhanced from time to time when the Commission's adjudicatory process bogs down. In this case, for example, more than four years elapsed between the oral argument of the exceptions to the Commission's initial decision and the final decision which left the initial decision essentially unchanged.

Super DMCA connections, broadcast flag connections — they're all there.

3 thoughts on “Hush-A-Phone

  1. Anonymous

    So let me ask you a question – would this apply to the addition of more TLDs? ICANN (AT&T) argues that adding more TLDs (Using Hush-a-phone) will harm the stability of the Internet (telephone system).

  2. Anonymous

    You know, I was so focused on digital copyright issues that I wasn't thinking about ICANN when I wrote that posting. But of course it's the same situation. I haven't noticed that the empirical instability evidence against adding TLDs is very strong — in fact, it's nonexistent. ICANN, yes, plays the role of the mock-technical ATT in this setting, keeping the lid on new TLDs for “safety” reasons that are actually anticompetitive in nature. But I think ICANN is being driven by its concerns that new TLDs would be disrespectful, or unserious, or obscene in nature, which would undermine its relationship with DOC and thus Congress. It's not (unlike the Hush-a-Phone situation) that ICANN is being driven by a single incumbent or even a group of incumbents. But the stability argument is weak nonetheless.

  3. Anonymous

    well I think that's just unfair. It seem to me that AT&T has some people in their pocket! I wondering is ICANN AT&T. well I wish hush-A-phone was a good idea and the FFC failed to hear reason.

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