First Amendment to Answer Call of Telecom Oversight

Michael Schrage is a writer, consultant and research associate at the Massachusetts Institute of Technology. He writes this column independently for The Times

Well, it seems S.1822 turned out to be a wrong number after all. But now that pernicious parochialism has finally disconnected congressional efforts to upgrade America's ancient telecommunications laws, what rules will govern tomorrow's information highways?

Will the essential document still be the Communications Act of-- can you believe it? --1934? The perennial Judge Harold Greene and the antitrust consent decree that dismembered Ma Bell? The tenderly technocratic "rule-makings" of the Federal Communications Commission? The precociously anachronistic Cable Reform Act of 1992?

None of the above: The "regulation" that will have by far the biggest impact on tomorrow's new-media services and the movie studios, cable operators and telephone companies that provide them will be the First Amendment of the Constitution of the United States. Consider it "freedom of the press" with a multimedia twist.

"If the existing telecommunications bills had not collapsed, there would have been serious First Amendment problems with many of their provisions," asserts Harvard law professor Laurence H. Tribe. "The new telecommunications landscape can't be planned or planted without the very fundamental considerations of the First Amendment taken into account."

Tribe, one of America's most brilliant constitutional scholars, has taken the same First Amendment rights that citizens comfortably associate with publishers of the printed page and cleverly mapped them onto the proprietors of telephone networks. Representing Bell Atlantic in its efforts to wriggle out of a regulatory straitjacket forbidding it from offering video programming over its own phone lines, Tribe successfully argued that the First Amendment offers the same free speech opportunities and protections to regulated telecommunications giants as small-town newspapers.

When a Baby Bell was a telephone company, moving other people's voices and data over its lines, it was a heavily regulated "common carrier" obliged to give equal access to all at government-approved rates. But with this ruling, don't think of a Baby Bell as a telephone company anymore: Think of it as a newspaper publisher--or a movie studio--that happens to have wires running into every local home and business.

"The reason I originally conceptualized the complaint on behalf of Bell Atlantic was that First Amendment considerations hadn't been playing an adequate role in the discussion," says Tribe. "The First Amendment definitely lowers barriers of entry to video programming for Bell Atlantic."

Comparable rulings have recently given Bell South and US West similar freedoms. These rulings are, of course, expected to be appealed all the way up to the Supreme Court. Should they be affirmed, the First Amendment--not antitrust laws or FCC rulings--will be the preeminent industrial policy of the Information Age.

Now, cynics might argue that Tribe's Bell Atlantic argument recalls press critic A.J. Leibling's caustic gibe that "freedom of the press extends only to those who own one," but this precedent is extraordinary in its implications. Presumably, a power utility that wants to send information down its networks would enjoy the same First Amendment rights as a Baby Bell.

If a Baby Bell has a First Amendment right to simultaneously distribute video, voice and text over its network, doesn't that, in effect, make obsolete cross-ownership-of-media provisions that forbid a single company from owning TV stations, newspapers and radio stations in the same town? What about the local cable company that wants to publish a newspaper? First Amendment challenges to media cross-ownership rules have been rejected by the Supreme Court in the past, but the court's rationale--based in part on the inherent scarcity of TV and radio broadcasting frequencies--is quickly becoming obsolete.

People ordinarily think of the First Amendment and the media in the context of such issues as the right of an individual to get a fair trial as opposed to the public's right to follow news about that trial, but that perception is now laughably limited. In the absence of coherently crafted telecommunications legislation, the First Amendment will continue to assume policy primacy over outmoded antitrust and cross-ownership rules and increasingly artificial distinctions between content and conduits. Consequently, in the eyes of today's courts, the First Amendment is enjoying a robust renaissance as an instrument of deregulation and economic competition.

"I think the First Amendment could and will and should be used for the removal of restrictions that separate industries from each other," agrees Eli Noam, who served on New York's Public Utility Commission and now directs Columbia University's Institute of Tele-Information. "The tradition of telecommunications regulation was 'content-neutral,' but the technological metamorphosis of the phone service to a mass medium has raised issues that give First Amendment issues priority over traditional utility law."

For example, the consent decree blocks the Baby Bells from offering long-distance telephone service. Does that mean Bell Atlantic can't sell its video programming beyond its region? That's like saying you shouldn't be able to buy the Los Angeles Times in New York. The point is simple: The preeminence of the First Amendment will ride roughshod over these irksome legal technicalities.

To be sure, there are a host of troublesome questions a First Amendment-driven telecommunications policy leaves inadequately addressed: What of non-discriminatory access to the networks? What does universal service mean in this context? But it's clearly time for policy-makers to worry less about trying to draw distinctions between cable operators and phone companies, content and conduits and worry more about what fairness and equity mean in a new-media world where the First Amendment comes first.

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