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The Courts Government News

Supreme Court To Revisit 1996 Telecom Act This Term 60

Posted by Hemos from the look-at-it-more-closely dept.
Masem writes "In addition to the cases of online adult material mentioned yesterday, the Supreme Court is slated to hear several cases regarding the failure of the 1996 Telecommunications Bill and it's affect on the current market, as summarized by NYTimes (Free Reg Req). Namely, 10 high profile cases that were in the federal circuits are being condensed into 3 specific cases that the court will hear separately. The first is dealing with rates and fees the local bell can incur on competing services (including alternate carriers and DSL CLECs) that use their equipment. The second is whether there still exists differences between the concept of common carrier between phone and cable services since the types of service that both are providing are quickly merging. The third is in regard to the ability for the federal system to overrule state utility boards in their decison and penalty of telecom companies."
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Supreme Court To Revisit 1996 Telecom Act This Term More

Supreme Court To Revisit 1996 Telecom Act This Term

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  • Good news. DCMA next?

  • Not a question of interpretation (Score:4, Insightful)

    by sting3r ( 519844 ) on Monday October 01, 2001 @11:20AM (#2373508) Homepage
    My neighbor is an attorney who is on retainer for one of the Baby Bells, and we were talking about the 10 lawsuits that were heading to the Supreme Court. He said that his clients were not concerned that the rulings would do anything besides strengthen the status quo, and that his client will be invariably pleased with the result. Why? Because the lawsuits are not questioning the interpretation of the law; rather, they are questioning the fairness of it. And the Supreme Court does not necessarily aim for the most fair result - its only obligation is to make sure the law is Constitutional, and to set a precedent for interpreting the law so that it fulfills the intent of Congress.

    He said that any meaningful reform of the 1996 telecom act would need a lot of intervention from Capitol Hill, and the interests that oppose reform are giving like mad [opensecrets.org] to our elected leaders.

    -sting3r

    • Re:Not a question of interpretation (Score:4, Insightful)

      by dmarcov ( 461598 ) on Monday October 01, 2001 @11:25AM (#2373530) Homepage
      It's amazing how many people in the US do not understand what the Supreme Court actually does (or rather, is supposed to do).

      The purpose of the court is not to determine whether the law was "a good idea" ... only that it meets VERY broad constitutional guidelines that were written in a different era (there's the power of strict constructionism, if anyone is interested). The court will most likely find all of the 1996 act constitutional - and thus only tinker at the edges. The power of Congress to make law in regards to interstate commerce is nearly absolute -- and over the past 75 years the commerce clause has come to embrace just about everything from civil rights to food inspection.

      The poster is quite correct that if we expect meaningful change in the law, it will have to come from Congress, not from the court.
      • The poster is quite correct that if we expect meaningful change in the law, it will have to come from Congress, not from the court.

        To which I think we should all say - Amen! There are many laws and policies that I oppose but it is shortsighted (in most cases) to look to the court to fix it. In order for the issue to be before the court at all my position must have already lost in the congress; that is to say my position lost in the democratic process. That process is not perfect, it is not directly the "will of the people", there is certainly corruption; but it is better than the alternative.

        The court is not a democratic institution, the justices are not elected, they don't even pretend to be accountable in any way to the people and they are not supposed to be. They may make the "right" decision in my opinion but if it only reflects the justices personal preferences with only a pretense of constitutional reasoning it is functioning as a benevolent dictatorship. In the short run I get what I want but it is a lousy deal for several reasons. First I have no confidence that they will stay 'benevolent' (i.e. agree with me). And anyway it is only 'benevolent' from my position as an advocate, I'm sure those that oppose my position would characterise it differently. My opponents initially 'won' in the democratic/legislative process - I can accuse them of winning through fraud & corruption but as a partisan I am probably not the most reliable witness.

        Finally there are very few checks and balances on Judicial power once they have discarded the self imposed check of sticking strictly to the constitution, there is almost no recourse for the losing side. Without viable political recourse they may abandon political/democratic means of pursuing their agenda. If the issue is merely commercial there may be very few consequences, maybe a slight increase in corruption and disregard for the law. If the issue is more fundamental and emotional the consequences can be severe. Look at the incresing violence of the abolitionist movement after Dred Scott and to a lesser degree the anti-abortionists after Roe. Representational democratic politics gives us a way of resolving conflict, take that away and the if the losing side is passionate enough it may resort to more primitive methods of resolving the conflict.
  • I just hope that they reign in Ashcroft's demands some. I don't mind the governmnet trying to protect it's people, but I do not what to lose my civil liberties...I get the feeling Ashcroft would like to subject every American to full cavitity searches twice a day.

    Something about him bugs me.

    "To give up liberty for security, you will end up with neither." - (I get conflicting stories on who said this...but whoever it was I give you the credit.)

    Sean D.

  • No Regestration Link (Score:2, Informative)

    by Gantoris ( 442791 )
    No regestration required here [nytimes.com]

    hope that helps everyone! Gant

    • Hurrah, a registration-free link.

      Before people ask (as they always seem to) why /. doesn't just post this in the story, could it be because they can be held responsible for the stories, but refuse responsibility for comments. That is, should the NYT see a link (such as the one above) in a comment, /. can denounce the poster (if it gets that serious), but should they see it in a story, then /. might find themselves liable. Liable for what, I don't know, but I'm sure a "good" lawyer would find something.

      Tom

      • Actually, the problem is slightly different, and is known as "deep linking". Courts have held that bypassing part of a provider's content to exclude the remaining content is a form of theft. The applicable case is one in which a company was wrapping their own interface around the data from a Ticketmaster site, bypassing all of the advertising, etc. thus essentially stealing the Ticketmaster site's bandwidth without enabling Ticketmaster to earn revenue by the advertising on their own site pages.

        So while a poster can include a link (which is their responsibility only), a company such as the one that owns /. cannot.

  • It was all a matter of time before the checks and balances system we have (in the USA) would test this.

    First the companies buy their laws.
    Second the courts review, comment, and declare consitutionality, and offers suggestions
    Third the companies start over at one.

    And in another five years we'll be doing this over and over again.

  • Simple NYtimes hack (Score:1, Informative)

    by Anonymous Coward
    It's pretty well known that replacing "www" with "archive" gets you around registration. I went a step further. Drop this line:
    208.48.26.212 www.nytimes.com
    into /etc/hosts and www is redirected to archive. Then just click the link on any /. story and you'll read the article, no reg required.

  • AC not KW (Score:1, Offtopic)

    by SubtleNuance ( 184325 )
    uname: testtest
    pword: testtest

    Cheap banner: Indymedia.org [indymedia.org]

  • Non-registration link, and a choice quote (Score:4, Informative)

    by tregoweth ( 13591 ) on Monday October 01, 2001 @11:28AM (#2373539)
    http://archives.nytimes.com/2001/10/01/technology/ 01TELE.html [nytimes.com]

    Best quote from the article:

    Seth P. Waxman, a former solicitor general in the Clinton administration, who argued cases involving the act, was more succinct. "It is the single most poorly drafted statute ever enacted by Congress," he said in an interview.
  • Despite being poorly written, the intentions were good. If I remember correctly, there was a great deal of deal-making going on in the last hours to even get the bill passed.

    Senator Exon (D) and some Republicans had all kinds of crap thrown in there.

    Supposedly there's a clause stating that you can't use a dialup connection and drink alcohol at the same time.

    Can anyone verify my memory on this?

  • too little too late for many startups (Score:3, Insightful)

    by kb3edk ( 463011 ) on Monday October 01, 2001 @11:32AM (#2373557)
    So Congress passes a law that deregulates telecom five years ago. Billions of dollars flow into capital markets to finance competition for phone service and broadband. But the Bells just get in the way and delay, delay, delay, until the startups flame out. I seem to recall reading a /. post a while back that said Verizon was happily paying fines for failing to open local phone circuits so their competition would burn through all their VC money just trying to stay afloat until they could get some revenue.

    These lawsuits are nice in a judicial sense, but from a financial and business standpoint I don't think Verizon and the others are shaking in their boots much. This is pretty much just mop-up work to be done now that the competition has been crushed.

  • Let them monopolize. (Score:4, Insightful)

    by FFFish ( 7567 ) on Monday October 01, 2001 @11:33AM (#2373559) Homepage
    Let AT&T have its monopoly back. But this time, regulate the damn thing. Regulate hell out of it.

    A consumer-regulated monopoly is a thing of beauty. The monopoly benefits: no competition, and a guaranteed profit.

    More importantly, though, the consumer wins: nearly anything the consumer wants, the consumer gets. The only limiting factor is that the monopoly must be allowed a reasonable profit.

    Fixed prices based on reasonable profits. Cool. You don't have to worry about your provider going tits up because they sold at a loss, and you don't have to worry about being gouged because there's only one provider.

    Guaranteed service. Very cool. Make the telco responsible for the line all the way to the phone. No more $130/hr service calls.

    Standardization. Also cool. We can force them to use the latest cell technology. Useful cellular service -- my god, it'd almost like living in Europe!

    Infrastructure upgrades can be controlled: people in Podunk don't have to be shafted with decade-old crap pilfered from the big-city telco exchanges. Goodbye mechanical switches... at last!

    Guaranteed coverage. Wouldn't that be too sweet?

    Etc.

    With a consumer-regulated monopoly, you don't rely on market forces to "push" the company into delivering new services or better prices. The company jumps through *our* hoops. As long as they're guaranteed a reasonable profit, they'll do anything we want.

    It's win-win.
    • We can force them to use the latest cell technology. Useful cellular service -- my god, it'd almost like living in Europe!

      I think carriers like Sprint PCS do just fine in America, considering that we have many many many more square miles of surface area to cover. They took a proven technology, started building a decent network, it's just gonna take some time to optimize the system! It's a big country with lots of end-users, after all. How big is Europe in comparison?

    • Competition and deregulation are great things. In certain cases. On the other hand, in any situation in which you have a small number of potential "competitors", with huge capital outlays to get into the business, deregulation is just silly.

      Some cases in point: long-distance competition has been a great thing. Local telephone competition is (and always will be) a mess-- even when (if) most customers have two or three choices, there will be limited incentive for a price war between the competitors.

      • 2-way sattelite internet access and cellular phone. Now, if I can find a way to get the alarm system to patch into the cellular network instead of using a land line, I can finally tell Verizon to fuck off! When the prices come down so that most people can afford these options then the local companies will be forced to compete in the real world. I am really looking forward to that day.

      • Problem is that local calling is simply unprofitable. Indeed, I think I could argue that private calling is unprofitable: the big money is in business calls.

        Which tends to indicate that local- and long-distance calling needs to be considered together, not separately. If the monopoly is guaranteed a profit, the profits of one can subsidize the costs of the other.

        In real life, long distance charges have dropped to S.F.A., while local charges have more than doubled in the past decade.

        At this rate, we're going to see per-minute or per-second charges for *all* local calling.

        Of course, with cellphone usage starting to outpace copper, we're already seeing a per-minute charges...
    • I think we have proven that long distance competition has been a boon for consumers and ultimately for those l.d. companies who had the stamina to survive the winnowing out process over the years.

      Local service, on the other hand, is a natural monopoly: because there is really only one pipe coming into your premises, it doesn't make sense to have multiple providers yanking the other end of it around to this, that, or the other central office. As a prime example, I hand you the d.s.l. debacle. Tell me that great experiment worked!

      The natural monopoly-ILECs did everythnig in their power to squash the so-called competitors providing d.s.l. over their last-mile circuits. I just saw a t.v. ad for some wannabe competitor to BellSouth Telephone the other night and just chuckled. I don't know how much longer they can stay in business promising discounts of greater than 50% off what B.S.T. charges. They are probably just reselling B.S.T. dial tone at wholesale rates, but why should B.S.T. sit there and let them rake in the bucks? I bet they'll do everything they can to delay orders, screw up orders, accidentally disable service, whatever they can to the competitor's customers.

      I look for no substantive changes from the Supreme Court. Competition is good, except where natural monopolies exist, as in last-mile provisioning.
      • >Local service, on the other hand, is a natural monopoly:
        >because there is really only one pipe coming into your premises,
        >it doesn't make sense to have multiple providers yanking the
        >other end of it around to this, that, or the other central
        >office. As a prime example, I hand you the d.s.l. debacle. Tell me that great experiment worked!

        I may be a little biased, since I work for a Bellsouth competitor, but I don't agree. Another phone company can come in with their own switching equipment (like we do) and lease just the line from the ILEC. We then can provide the same services (or different services) as the ILEC, and compete with them based on price, customer service, and product lines. I will admit that in some areas we do lease and resell Bellsouth services, but that is only in areas where our own equipment has not been rolled out to. Trust me, we don't make much off of that, we just use it to satisfy customer demand when they want to get away from the local ILEC because they are dissatisfied with the service and support from the local ILEC. If it wasn't for small companies like us, when the local ILEC pisses you off, you have no recourse but to grit your teeth and continue writing them checks.

      • >I bet they'll do everything they can to delay >orders, screw up orders, accidentally disable >service, whatever they can to the competitor's >customers.

        I've worked in the industry as a consultant on and off for the last 15 years. I have never seen a large company (BST, NYNEX, SNET etc) do anything on purpose to screw up orders from a reseller. Usually the LECs WANT the competitor in the market. They WANT some competition.

        Now the folks that think the LECs are sabotaging the competition are probably the same people that think the world is run by the Illumati.
      • There is no such thing as a natural monopoly. In the U.S. a few monopolies exist with the blessing of the state because of historical reasons, and because the powerful people in control of those monopolies refuse to relax their death-grip on the public dependance.

        Phone lines no more need to be monopolized than do the highway system. For example, local governments could provide telephone poles as a public resource, similar to roads. Then you allow any interested businesses to run lines on those poles, possibly subject to simple zoning regulations. (Which would be analgous to the traffic laws that govern the public road system).

        That's just an example of a non-monopoly solution to the phone company problem, off the top of my head. If running wires on those poles turned out to be too expensive for individual companies to be able to run their own lines, well perhaps the government should run public copper as well, and let people connect to the local switching station for the service provider they prefer.

        There is always a better solution than a monopoly. Centralization always brings huge problems with it simply due to human nature. The less centralization the better.
    • Sure, the consumer-regulated monopoly may sound good initially, but let us look at the negative side, too.

      No incentive to innovate- Why spend my profits on research when there is no competition. Why should I spend lots of cash on new, slightly better products if my profit margin is going to be the same (or worse, counting all the money I spent on research)

      Don't like my customer service? Too Bad! What can you do about it, complain to some regulatory board?

      As far as the company "jumping through *our* hoops", have you ever tried to push a donkey? Monopolies, like all bureaucracies, run on inertia, for good or bad. Getting them to change is never easy.
      • Something has got to be better than the situation we have now. Everyone who is happy with their local phone monopoly please raise your hand. Okay, those of you that work for the monopoly can put your hands down. Anyone left.... anyone... hello???
      • If there was no incentive to motivate, then how did Canada -- which until recently had nothing but provincial monopoly telcos -- end up with Nortel, one of the world's leading telephone technology innovators? Nortel, which was born of our telco monopolies, and which supplied them with the latest and greatest technologies. Technology which, I might add, it took *years* for the US to start using.
    • consumer-regulated monopoly

      Interesting idea, do the consumers vote on telecom policy? Do you only get to vote on issues relating to things you are actually a consumer of? For instance if I am a cell phone user but don't use dial-up do I get a say on regulating cell phone use but not internet use?

      Or, is "consumer regulated" a euphamism for government regulated?

      Standardization. Also cool.

      You forgot, Standardization: if you want internet connectivity you have to use the standardized monopoly OS. (consumer regulated of course, probably with the consumer regulated monopoly browser too)

      As long as they're guaranteed a reasonable profit, they'll do anything we want.

      No, they will do anything the *majority* of us wants (that is if democracy is working well on that day, if there is any corruption then of course it will do whatever it's bought off legislators and regulators let it do). There will also be no alternatives that cater to the needs of a minority, like say Linux users.
      • Standardization in the telco arena is a good thing. One of the greatest hold-backs for cellular technology in North America is that we've got too many competing, incompatible technologies.
  • Justice Antonin Scalia says in the article,
    "It is in many important respects a model of ambiguity or indeed even self-contradiction. That is most unfortunate for a piece of legislation that profoundly affects a crucial segment of the economy worth tens of billions of dollars."

    Why wasn't this pointed out in 1996?

  • public goods (Score:5, Insightful)

    by shibut ( 208631 ) on Monday October 01, 2001 @11:45AM (#2373616)
    It is always amazing to me that a law that tries to get rid of monopoly/ies has left so much power in their hands without real controls on the amount of rents they can extract. It is especially strange since telecom lines in today's world are a public good, much like roads in the early 20th century. While there are toll roads, it would have been inconceivable to have all roads be toll in the 1950's, for example. I wonder if it is possible to argue in court that the nature of the service provided has changed and thus various other laws now apply to telecom lines (thus creating a conflict with the telecom law that must now be resolved by the supreme court).
  • One of the most irratating things of dealing with the Bells is their refusal to delivery service within a decent amount of time. For example, ordering DSL from a competitor that uses a Bells' local loop will take sometimes three weeks or longer, but ordering DSL directly from the Bells' you can easily have the connection up and running within a week. The Bells' intentionally delay delivery of local loop and repairs to competitors using their lines. Unless this is addressed, no matter what deregulation or fines are imposed, Bells' will continue to have control of the market and the uncontrolled ability to put competitors out of business.

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