Posts Tagged ‘telecommunications law’

Hours before Sunday’s broadcast of the Oscars, whole swaths of the New York viewing audience were cut out because ABC pulled its affiliate stations. In the wake of this event, a coalition of broadcast providers submitted a petition to the FCC, asking that the current rules that govern broadcasting and redistribution are ripe for reassessment.

The current rules were formulated in 1992, and it should be obvious that lots of things have changed with respect to telecommunications and broadcasting since 1992.

The lag between older legal structures and emerging technologies and practices is nothing new. In this realm the law doesn’t and has never governed retroactively, but it always operates from the wake of history. Laws about new or emerging communications technologies are built on older frameworks, and therefore have always lagged a few decades behind the actual communications practices and technologies that the laws are written to govern.

As telephony and telegraphy spread, the laws that governed them were laws that were originally written to regulate interstate commerce. The only imaginable structure that could compare with telephony was trucking. When the radio act was written in 1927, it was modeled on the wireless laws that that controlled ship-to-ship communications because that was the only format for understanding wireless communication.

The laws governing television followed the laws of radio and the network model, and the laws about cable were written with television in mind, and so on. To be sure, there have been changes in the law — both innovative and some deeply troubling. But as new laws are imagined and formulated, they are done so as if new communications models will look just like older models; that telephony would be similar to trucking or that television would be like radio.

This is less a failure of law than a success of particular interests that were shaped from the very beginning by the desires of commercial interests. Here’s the punchline: because the commercial interests (AT&T during the radio era, DirectTV now) are deeply invested in maintaining the status quo. There is lots of money to be made (or lost) in controlling what communications look like. There is little impetus for innovation as such, so why not build the new laws to look like the old ones?

Certainly, the internet is radically reshaping habits and practices of the consumption of popular culture, and the 17 year-old laws are deeply in need of an overhaul. But is this round of law going to preserve the past or usher in the future?

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