I’m on a panel next week that is nominally about virtual worlds but seems infinitely expandable, so I’m planning to talk about FCC regulation. It’s a Ripley’s Believe It Or Not! kind of approach.
You’ll recall that a petition was filed earlier this fall asking that the FCC require email forwarding. There was even a frisson of Congressional interest. I went back and looked at the filed comments. You may have all thought this was a pretty silly petition, but Verizon, Time Warner, AT&T, NCTA, USISPA, ITIC, and a bunch of individuals thought the issue was close enough (and the Commission is unpredictable enough) that they needed to weigh in. Meanwhile, the petitioner remains outraged (petitioner’s follow-up letter here) — particularly irritated that Time Warner is now paying a gaggle of lawyers to make elaborate legal arguments about the appropriateness of government intervention when it could have simply solved her problem through better customer service.
Time Warner’s elegant opposition:
[C]ompetitive choices already afford consumers the “e-mail address portability” that the Petition would have the Commission establish through a rulemaking. Thus, proceeding down this path would result in no discernable benefit for consumers and in fact would harm their interests by placing substantial operational and compliance burdens on service providers that could only increase costs to end users and curtail the degree of choice available in the marketplace today. The result would be a net loss for consumers as well as for the Commission, which would have wasted valuable resources in pursuit of an outcome that market forces already have produced.
The Petition is more than an invitation to make bad policy—it would represent an unprecedented (and likely unlawful) jurisdictional stretch. The Commission has never sought to regulate the provision of e-mail addresses and, as explained below, it lacks any jurisdictional basis on which to do so.
Verizon continues the jurisdictional argument:
Although Title I grants the ommission general jurisdiction over interstate or foreign communications by wire, this jurisdiction can only be asserted if it is “reasonably ancillary to the effective performance of [the Commission’s] various responsibilities.” This requirement is not satisfied here because email address portability is not mandated by any statutory provision. Further, the proposed regulation is inconsistent with the deregulatory regime that Congress has mandated for the Internet and Commission has adopted for information services.
You get the gist. Lots of opposition to this petition, and, as ITIC wryly points out, even parties who don’t usually agree with one another agree that the “Commission’s jurisdiction to require email forwarding is, at best, questionable.” But it’s questionable enough, there’s enough there to worry about, that they all hauled out their guns and filed.
Okay, so maybe the Commission won’t go into the business of regulating email. There are other ways for regulatory pressure to be brought to bear on online applications – try access charges.
I’m new to this subject, so forgive me if I get this wrong. As I understand it, local phone companies charge a lot to long distance companies to connect (”terminate”) the calls that come in from them. To protect ISPs from these exorbitant access charges, the FCC some time ago declared that “Enhanced Service Providers” (including ISPs) are treated as local phone customers and are exempt from interstate access charges paid by carriers. Thus, rather than paying higher access charges, ISPs simply purchase phone lines from the local phone company as any local business would do.
Now, what if the Enhanced Service Provider is in the business of making it possible for virtual world denizens to call traditional phone numbers? (You can see that this quickly becomes a bigger issue about the interface between internet “calls” of all kinds and the phone system.) What if you want to set things up so that your guild can ping your mobile phone, or your virtual workgroup can get in touch with you over your handset? Alerts? Video hookups, one end of which is using a traditional phone number? A Skype call to your cellphone?
W ell, AT&T in Texas is taking the position that in order to qualify for the access charge exemption, the call coming in has to be associated with a traditional local phone number. So unless your guild has a number, it will be subject to these charges. That could be a lot of money, as I understand it. (I’m gleaning this from a petition that was recently filed with the FCC.)
This is a longstanding and hairy issue, involving the construction of interconnection agreements and apparently unlimited acronyms (AUA).
It seems pretty straightforward at bottom, though — not only can traditional phone companies seek to control internet escapades of their customers (through the rejection of network neutrality), but they can also make it really expensive for group/virtual internet escapades of all kinds to reach traditional phone numbers.
I suppose the answer could be “well, leave the phone out! who cares about phones!” But if in the mobile wireless world the “phones” (and the phone numbers) become even *more* salient — if the cellphone internet access model wins out over the open internet access model — this kind of monetary hold-up could be extremely destructive.
Which is why we need unlicensed access to the white spaces..but even I may not be able to fit that topic into a panel on virtual worlds.
*Cross-posted to [Susan Crawford blog](http://scrawford.net/blog).*