Telecommunications Law deals with several themes, which specifically include:
- The Role of Laws and Regulations in a Community and How to ensure the laws are optimal
- How Laws affect the integration and convergence of the different telecommunications technologies
- The role of markets and competition in telecommunications laws
- Regulatory challenges of the federal government in the telecommunications marketplace
- The tension between technological convergence and legal special interests.
Historical Context of Telecommunications laws
Are you aware of the real world historical events that led to the National and State governments getting involved in the regulation of telecommunication technologies?
The sinking of the Titanic highlighted an import fundamental about telecommunications law in that there were no standards of when the radio operators should be operating. Can you imagine being on a cruise ship and being one of a thousand stranded travelers at sea with no means of communication to the rest of the world (not being able to reach the coast guard or anyone over the radio or airwaves to request help)? In a situation such as this you realize there is a need for radio and broadcast communications so that you can communicate with other ships in the area and reach rescue and emergency personnel with your messages of distress and requests for help. Based on this scenario, would you not agree that a properly regulated communications system would be in the “public’s best interest”? If there are no standards for communications and regulation of different technologies that allows each ship, radio, and broadcast station to connect with each other, how do we identify and prioritize what communication needs are more important at what time? The question then is who should determine the use of the broadcast and radio spectrum and regulation of the communication of the airwaves to address this communication need?
Why Regulate At all and Why Regulate Telecommui
|Why Regulate Telecommunications
The integration and convergence of cable, Internet, and telecommunications products and services is an increasing reality, therefore understanding the laws, policy makers, and organizations that are involved in doing business in the telecommunications marketplace is imperative for any business professional or consumer seeking diversity of telecommunication products and services at better prices. The fundamental purpose of laws is to regulate and govern the actions of members of our society. Laws determine who has the power to make decisions, what standards, rules, and regulations members of our society must adhere to, and what are the penalties for violating these rules and regulations. All systems (business, economic, education, and social systems for example) require some level of governance to function properly and it’s in the best interest of competitors and the consumers they serve. The telecommunications industry is no different in this regard. Law provides that structure and framework in which clear standards and regulations for how business will be conducted in the telecommunications industry. The challenge is to have a system of governance, rules, and regulations that will allow for continuous technological growth and innovation by each company. This should occur while maintaining a stable and structured business environment through rules and regulations that will prevent abuse of the system, unethical business practices, fair competition, and any other business practice that is in the best interest of businesses and the consumers they serve.
The telecommunications historical foundation, principles, and concepts we lay out this week will prepare us to properly address other topics in subsequent weeks, such as the issues of “Public Trustee in Broadcasting,” the concept of “Natural Monopolies,” and “Universal Service.”
The intent of this class is to study two fundamental questions:
- Should we regulate telecommunications technologies? The first question is should we regulate telecommunications at all, and if we do have to regulate, how do we ensure that the regulations we come up with are effective considering the interrelatedness of different telecommunications mediums such as cable, broadcast, telephony, and Internet?
- What are the best strategies for telecommunications regulation? The second question we study is what are past and current telecommunications regulations, and how do we apply them to the analysis of the different telecommunications mediums today? In addition, to what extent should we take into account the variety of social, economic, and technological issues when creating and implementing regulatory schemes in the telecommunications industry? In this capacity, you as the student will have the opportunity to “be the judge” by researching and analyzing telecommunications regulations and determine how and if they should be applied in particular circumstances.
This week will provide you with a broad overview of the regulatory regime that governs telecommunications. You will be exposed to a great deal of information useful to providing you a historical grounding in the laws, principles, concepts, and policies that govern the telecommunications industry. Some of the fundamental issues that are critical to understanding Telecommunications Law and Regulation are:
- Understand the overall regulatory environment for telecommunications.
- Understand basic principles and concepts of the Telecommunications Act of 1934.
- Understand broadcast regulation: early history and electromagnetic spectrum.
- Understand rationale behind regulation and arguments, pro and con, for regulation of broadcast.
- Understand the nature of broadcast regulation and the role of the FCC.
- Understand the issues of scarcity and interference in the government’s allocation of the broadcast spectrum and the excess demand for broadcasting licenses provided by the federal government.
- Understand the issues of Localism and diversity in broadcast regulation.
One of the fundamental purposes of law and regulation is to institute enforceable rules governing the way human beings relate, communicate, and interact with each other in a personal and professional context. There are four different sources of American law that may come into play when there is a telecommunications regulation issue, depending on the facts and circumstances of the particular case, they are:
- Constitutional Law: The federal constitution is a document of broad and general powers that are distributed among the branches of government. The US Constitution is the “Supreme Law of the Land.” One clause within the US Constitution that is specifically relevant to Telecommunications law and regulation is Article 1 Sec. 8 which permits Congress (the federal government) to regulate commerce among the several states. This has come to be known as the “Commerce Clause.” The commerce clause has had a greater impact on business than any other provision in the Constitution. The commerce clause provides the basis for the national government’s regulation of state and even local business affairs.
The purpose of the commerce clause is to prevent states from establishing laws and regulations that would interfere with interstate commerce. This power is delegated to the federal government by the Constitution. This has been broadly interpreted to mean mostly an area of business activity, such as the telecommunications field.
- Commerce Clause, Communications Act of 1934, and the FCC: Under Congress commerce powers, the Communications Act of 1934 was created to regulate all issues pertaining to broadcasting law. In addition, its other principal purpose was to place all federal regulation of interstate telephone and telegraph service under the newly formed Federal Communications Commission (FCC).
- Statutory Law: The second source of law in America is statutes and ordinances which are enacted by Congress, state legislatures, and local legislative bodies. The interpretation of statutes and determining what lawmakers meant when a law was passed is much of what judges and courts do (on a case by case basis in each jurisdiction). Each state, for example, might have its own set of statutes dealing with telecommunications law.
- Administrative Law: Another source of American Law is administrative law which consist of rules, orders, and decisions of administrative agencies.
- Administrative Law, Telecommunications Regulation, and the FCC: A perfect real world example of this is the Federal Communications Commission (FCC), which is the federal administrative agency that enacts and executes laws which regulate interstate and international telecommunications by broadcast, radio, television, cable, wire, satellite, and more recently, the Internet. The FCC was established by the Communications Act of 1934, and its jurisdiction covers all 50 states. Any state law pertaining to telecommunications that is in conflict with any FCC rule, regulation, or order will be rendered invalid and be preempted.
- Case Law and Common Law Doctrines: The fourth source of American law consists of rules of law announced is court decisions by judges. Included are judicial interpretation of constitutional provisions, of statutes enacted by legislatures, and regulations of administrative agencies such as the FCC. Common law case decisions can be far reaching and influential in terms of affecting other court decisions in the future that might share similar facts or legal principles. Judges many times look to how they or other judges ruled in previous cases, which might have set a precedent for a certain subject matter or legal area. Therefore, how a judge rules in a particular case involving telecommunications law can set a precedent for how he or she might rule on another telecommunications case in the future.
|The Regulatory Process
The regulatory process is the way we determine laws. It is a constantly evolving process, ensuring that laws are not found objectionable. Successful societies find an effective balance between the regulatory effects of government and commerce. The challenge is to find a healthy balance between increased competition, technological innovation, and regulation that supports the telecommunications industry, while ensuring the best interest of the public. The pursuit of this balance is explored in this course. Because this is a telecommunications class, we will use telecommunications as an example. We will explore how competition applies to the telecommunications industry. We will explore how telecommunication is a technology that has gone way beyond our legal systems. You may think that all the important legal and regulatory decisions have already been made. However, the process is constantly evolving and changing to address new technologies and ideas.
|Telecommunications Regulation Stakeholders
The three key stakeholders that are affected by various telecommunications laws are:
- The incumbent and dominant providers of telecommunications services (such as the Bell Companies or AT&T).
- Other telecommunications providers (market entrants).
- The consumers and people of the United States.
Historically, the legal field has dealt with the regulation of different telecommunications products separately. This is partly out of necessity, because telecommunications technologies evolved and developed at different times throughout the history of our country. Keep in mind that the questions that will be consistently addressed throughout each telecommunication medium covered in this course and which you should always keep in mind as you study is should we regulate telecommunications at all, and if we should, how do we ensure the regulations achieve their goals, what should the goals be, what public policy interest should those goals serve, and who should be responsible for the implementation of the telecommunications goals and objectives?
|Technological Integration, Convergence, & Legal Stability
The world of telecommunications and technology is one of constant change, growth, expansion, integration, and convergence. Change in the technology field is a normal way of life. The law, on the other hand, seeks to achieve predictability, continuity, and stability in a world of constant change. This, for example, is what judges attempt to do when deciding on cases by making concerted attempts to follow the decisions of previously decided “precedent” cases, where appropriate. This goal of legal stability is based on a principle in the legal field called “Stare Decisis,” which literally means “to stand on decided cases.” As we explore the various cases and issues in this course, you will get a feel for how the court struggles with the myriad amount of technological, legal, special, and public interest issues involved in making regulatory decisions in telecommunications cases throughout the history of our country. Secondly, you will see how those past case decisions have lasting and long-term implications for us as consumers, business owners, and the providers of telephone, cable, broadcast, and Internet services who provide the telecommunications products and services to us. You will also learn that business and technology influences the law as much as the law influences, impacts, and governs the world of business and technology. The two worlds are not separate from each other at all, but are essentially “co-dependent” on each other for the proper creation, allocation, and distribution of telecommunications products and services.