Comparative Telecommunications Law Spring, 2007 Prof. Karl Manheim 2: Regulatory Frameworks Copyright © 2007

Spring 2007CTL2 Telecom Regulation in the US Legal Framework Constitutional  Art. I, § 8, ¶ 3: “interstate commerce clause”  Art. II, § 3: executive power => agencies  Federalism - Local authority and preemption Legislative  Communications Act of 1934  Telecommunications Act of 1996 (TCA)  Various specific laws (e.g., SHVIA, COPA)

Spring 2007CTL3 Telecom Regulation in the US Legal Framework Regulatory Agency  FCC within the Executive Branch  Quasi-Legislative and Quasi-Judicial Authority Where to find the laws Title 47 United States Code [Communications] Title 47 Code of Federal Regulations [FCC rules] FCC Record [Agency decisions] State statutes; local ordinances

Spring 2007CTL4 Telecom Regulation in the US FCC organized by economic sector (bureaus) Common Carrier - Wireline Telephony  Now, Wireline Competition Bureau Media - Broadcast Radio & TV Wireless - Wireless Telephony Cable - Cable TV International - Satellite Other  Enforcement  Consumer & Governmental Affairs  Public Safety & Homeland Security

Spring 2007CTL5 Origins of Agency Federal Radio Commission Created by 1927 Radio Act (47 USC § 83) abolished by § 603 (1934) Federal Communications Commission Created by 1934 Communications Act (47 USC § 151) Its "jurisdiction" (power) is specified by Congress in enabling and amending stats.  Powers and Duities of the FCC Powers and Duities of the FCC

Spring 2007CTL6 The Commission 5 Commissioners Max 3 from same political party (47 USC § 154)  Mostly (non-technical) lawyers [but tech staff] Deborah Tate Michael Copps Kevin Martin (Chairman) Jonathan Adelstein Robert McDowell

Spring 2007CTL7 FCC Organizational Chart click on chart

Spring 2007CTL8 Other US Telecom Agencies National Telecommuniations & Information Administration (DoC) Manages government spectrum Policy advisor for executive branch Copyright Office Significant copyright issues on broadcast programming Significant copyright issues on broadcast programming

Spring 2007CTL9 Local Authority in the US General Principles of Federalism Local issues can be regulated only by States National issues can be regulated by both States and Fed Gov’t unless Congress preempts Preemption Express  See, e.g., 47 USC § 253(a); § 332(c)(3)(A)  Express non-preemption. E.g., 47 USC § 253(b) (c) Implied  Conflict; frustration of purpose; occupation of field

Spring 2007CTL10 Nixon v Missouri Mun League (2004) TCA § 101(a) [47 USC § 253] “No State or local statute … may prohibit … any entity providing telecom services” Missouri law prohibits local entities from providing telecom services Is the state law preempted? Normal preemption doctrine cannot apply without the fed’l gov’t restructuring states Missouri statute not preempted

Spring 2007CTL11 Legal Basis for Telecom Reg’n - EU Supernational Maastrict Treaty of 1992 (establ. EU) Constitution  Protocol 27 (broadcasting)  Arts (competition)  Art. 129 (networks) European Commission (executive) European Parliament & Council (legislative) European Court of Justice (judicial)

Spring 2007CTL12 Legal Basis for Telecom Reg’n - EU De/Centralized European Law Compare US federalism National Parliaments ( transpose/customize EC Directives )  Compare “commandeering” in the US National Laws Enforced by NRAs  EU-wide competition reduces parochialism, but transactional costs remain high

Spring 2007CTL13 Regulatory Framework in Europe Historical - State Ownership of ICT State monopoly on content & distribution Liberalization Under EU Competition (Open Markets)  EC Treaty Article 82 Ended natural and regulatory monopolies Coordination (Open Networks - ONP)  Preserved National Regulatory Authorities (NRA)  Framework Directive Common Regulatory Framework for Electronic Com’ns

Spring 2007CTL14 Major Telecoms Legislation - EU Major Directives Framework  Main regulatory principles (single EU market) Standardization, Competition, Non-discrimination Access (provider & consumer), Interoperability  Restructuring of NRAs Independence, transparency and cooperation Authorization  Replaces individual licensing w/ sector-wide author. Competition  Replaces monopoly & ex ante w/ ex post regulation

Spring 2007CTL15 Major Telecoms Legislation - EU Major Directives Access  Competitor access & network interconnection Universal Service  Consumer rights of access & affordability Other Directives Privacy of Electronic Communications  Privacy rights Television Without Frontiers  Pan-European broadcasting rights & non-exclusivity

Spring 2007CTL16 Open Markets in Europe Competition across sectors Focus on markets, not technologies Focus on market power, not regulation  Telcos w/ “significant market power” are required to facilitate competitor entry Promotes telecom investment; industry growth Compare US antitrust law (e.g., US v. AT&T) Example: US: Cable broadband - competition not required  See Brand X v. FCC (2005) (but DSL competition req’d) EU: All broadband is subject to Framework Dir.

Spring 2007CTL17 Telecom Structures in EU Commission (executive) Viviane Reding (LU) (C’mr for ISM) Parliament (legislative) Committee on Industry, Research and Energy Council (legislative) Transport, Telecom’s and Energy Agency Directorate General for the Information Society and Media - DGISM Directorate General for the Information Society and Media - DGISM  Fabio Colasanti

Spring 2007CTL18 DGISM Structure Directorate A: Audiovisual, Media, Internet Directorate B: Electr. Communications Policy Directorate C: Information Society Policies Directorate D: Converged Networks Directorate E: Digital Content, Cognitive Sys. Directorate F: Emerging Technologies Directorate G: Components and Systems Directorate H: ICT and Societal Challenges

Spring 2007CTL19 Mobistar v. Fleron (ECJ [AdvGen] 2005) Facts & Procedural History Cities of Fleron and Schaerbeck (BE) impose a tax on wireless telephony antennas Mobistar complains to Counseil d’Etat (high administrative court), which refers to ECJ  AG writes “opinion” Court issues “decision” Claims: Local taxes violate EC Treaty (Rome) Art. 49EC Treaty & Directive 90/388/EECDirective 90/388/EEC  Supplanted by Competition Directive (2002/77/EC)

Spring 2007CTL20 Mobistar v. Fleron (ECJ [AdvGen] 2005) Relevant laws EC Treaty Art. 49  “ restrictions on freedom to provide services within the Community shall be prohibited [for] nationals of Member States [providing services in other States]” Competition Directive Art. 3c:  “Member States shall ensure that all restrictions on operators of mobile systems [re] infrastructure and other facilities and sites … are lifted.” Authorisation Directive Arts. 6, 11  fees imposed [on licensed telcos] shall cover only universal service contributions & administrative costs

Spring 2007CTL21 Mobistar v. Fleron (ECJ [AdvGen] 2005) Questions: Is a tax a “restriction” per the Competition Dir.?  Not necessary to decide Do the local taxes exceed Author Dir. Art. 6/11?  Exception for “scarce resources” designed to optimize utility (approximating market in goods)  Revenue fees in any other context impedes pan- European harmonization and telecom liberalization  Revenue and environmental consumption taxes are not permitted

Spring 2007CTL22 Mobistar v. Fleron (ECJ [Court] 2005) Analysis Uniform taxes do not discriminate against trans-border services; don’t violate EC Art. 59 Author Dir intended to abolish exclusive and special rights that inhibit competition  Uniform taxes don’t affect competition  Legacy taxes may

Spring 2007CTL23 Legal Basis for Telecom Reg’n - Int’l Framework UN ITU INTELSAT (Int’l Telecom Satellite Org) WIPO Specific CEPT (Conf. of Postal & Telecom Admins) Voluntary ICANN

Spring 2007CTL24 Int’l Telecomm’ns Union (ITU) Treaty Organization, now part of UN Functions & Sectors Radiocommunication (spectrum coordination)  Including satellite coordination Standardization (interoperability)  Notably excludes Internet Economic Development (emerging economies) Authority Advisory & study groups make “recommendations” to national agencies

Spring 2007CTL25 World Trade Organization (WTO) Structure Multilateral Treaty Organization  Uruguay Round of Int’l Trade Negotiations Legislative Ministerial Conference (compare US Congress) General Council Sector Councils (goods, services, IP) Executive Secretariat

Spring 2007CTL26 World Trade Organization (WTO) Specific WTO Framework Laws GATT (Gen’l Agreement on Tariffs & Trade) (goods) GATS (Gen’l Agreement on Trade in Services)  Most-favored Nation Treatment  Transparency  Barriers to Trade ABT (Agreement on Basic Telecommunications) Market Access Rights for foreign telecom companies TRIPS (Trade-Related Aspects of IP Rights)