Set out below is the abstract for another work in progress that considers whether wireless carriers should evade regulation of their "third screen" video services. The paper will appear in a future edition of the Berkeley Technology Law Journal; a darft version is available at: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=102928
Wireless handsets increasingly offer subscribers a new optionfor accessing the Internet and video programming. The converging technologies and markets that make this possible present a major regulatory quandary, because the Federal Communications Commission (“FCC” or “Commission”) seeks to maintain mutual exclusivity between regulated telecommunications services and largely unregulated information services.
Many existing and emerging services do not easily fit into one or the other regulatory classification, nor can the FCC determine the appropriate classification by extrapolating from the regulatory model applied to existing or discontinued services. By failing to specify what model applies to services appearing on cellphone screens, the FCC has failed to remove regulatory uncertainty. Cellular telephone service providers may infer from the Commission’s inaction that any convergent service eventually will qualify for the unregulated information service “safe harbor” despite plausible arguments that government oversight remains essential to achieve consumer protection, national security, fair trade practice, and other safeguards.
This article will examine the regulatory status of wireless carrier-delivered video content with an eye toward determining the necessary scope and nature of government oversight. The article reports on instances where the FCC deemed it necessary to promote video programming competition and subscriber access to wired cable television content, and concludes that wireless subscribers deserve similar efforts in light of wireless carriers’ incentives and abilities to blunt competition. The article concludes that the FCC must balance the carriers’ interests in finding new revenue centers to pay for next generation network upgrades with subscribers’ interests in maximizing their freedom to use handsets they own.
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Funny you should mention this -- in Canada, we have just concluded hearings on this very issue (and others), leading to a decision to continue to exempt third-screen video services from regulation, except for an undue preference rule which will allow the CRTC to adjudicate anticompetitive-behaviour-type allegations.
As you may know, in Canada multichannel video regulation generally addresses the issue of shelf space for Canadian-produced content and, in Francophone contexts, for French-language content. The Canadian new media decision (just handed down last week) judged that regulation of this type was not necessary at this time.
Finally, note that what sometimes gets lost in the shuffle is the regulatory status of wireless audio services (i.e. non-Internet radio subscriptions delivered to wireless devices) -- pay $10 for 10 satellite radio like channels type deals. In Canada, there was a regulatory void on this question, possibly similar to the void you discuss in your paper, which has now been filled.
The decision itself is here; our summary and analysis here.
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