FCC Has More Muscle After ‘Brand X,’ Abernathy Tells Lawyers
COLOGNE, Germany -- The FCC will get more respect from judges after the Supreme Court’s Brand X ruling (CD June 28 p1), Comr. Abernathy told the U.S.-German Lawyer’s Assn. here Mon. Because the decision freed the Commission to set different access regulations for DSL-providers and cable operators, regulated industry can expect a series of decisions in coming months, Abernathy said.
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Because the high court acknowledged the FCC as the expert agency on questions of provider classification, Commission initiatives will be sturdier, others said. “This could make the FCC quite immune against court complaints with regard to that classification,” said Stefan Bechtold of the Max Planck Institute for Research on Collective Goods in Bonn, after the talk. For some consumer groups that had lobbied for open access regimes, an FCC ruling against open access for all provider categories would be the worst outcome, he said.
Abernathy predicted a regulatory regime more focused on core social obligations like E-911, CALEA and the universal service fund, but with a hands-off approach to economic regulation. Simply extending existing regulation rooted in monopoly market situations to new market entrants “can do great harm”, Abernathy said. Instead, she said, she’s inclined to consider “lifting legacy regulation for incumbents as soon as the new platforms have firmly been established.” This would open the way to more “technology-neutral” regulation, Abernathy said.
Saying she welcomes discussion of a revised Telecom Act, Abernathy pointed to the EU Framework Directive for electronic communications networks and services as a model to be examined. “It is always good to talk to regulators in other countries, as we are all grappling with the same problems,” she said.
Noting that technology-neutral regulation could become common internationally, Abernathy warned German lawyers and academics not to expect more content regulation. “There are discussions in the U.S. about regulating not only indecency, but also violent content, but if we would go further, it would be illegal,” Abernathy said. The U.S. tradition of free speech under the First Amendment differs from the European approach of curtailing expression such as hateful content, she said. This can create problems, such as when EU authorities find pro-Nazi content in European languages on sites hosted in the U.S. -- a common occurrence -- but can’t act against them because of First Amendment safeguards.
Any extension of content regulation must deal with the “content dilemma” that what one person considers indecent or excessively violent material isn’t so for others, Abernathy said. “Your perspective will be different if you are a parent,” she said. “It will be different depending on your age.”
Even within the U.S., levels of sensitivity may differ greatly by region, Abernathy said. This has inclined the U.S. more toward enabling parents to use intelligent filtering tools online and for broadcast content. But as consumer reluctance to use the V-chip example shows, she said, such tools need clear instructions. Abernathy noted a new promotional campaign is addressing concerns about content control, she said. By offering intelligent filtering, providers might address the problem more effectively than new requirements from Congress would, she said.