EFF Position on Markey/Fields Infrastructure Bill

[David Farber <farber () central cis upenn edu>]

National Communications Competition and Information Infrastructure Act of 1993


HR 3636


Introduced by Reps. Markey, Fields and Boucher


EFF Position Statement and Summary




        On Monday, November 22, 1993,  House Telecommunications and Finance
Subcommittee Chairman Edward Markey (D-Mass.), Minority Chairman Jack
Fields (R-Tex.), and other cosponsors introduced the "National
Communications Competition and Information Infrastructure Act of 1993."
The legislation, which incorporates EFF's Open Platform philosophy, is
built on four concepts: open platform services, the entry of telephone
companies into video cable service, universal service, and competition in
the local telephone market.


        Of all pending telecommunications legislation, Markey's bill is the
only one with a vision of an open, accessible network which supports a true
diversity of information sources.  The legislation proposes a major
restructuring of the Communications Act of 1934 in order to account for
changes in technology, market structure, and people's increasingly advanced
information access needs.


        EFF recommends strong support for the bill.  For the bill to
realize its goals however, the following key changes are necessary:


*  Require Open Platform Services to be tariffed at reasonable, affordable
   rates;


*  Strengthen non-discriminatory video dialtone access rules and eliminate
   current five year sunset provision;


*  Add information infrastructure access to the definition of universal
   service, and ensure public interest participation in redefinition of
   universal service obligations;


*  Ensure that all telecommunication providers pay a fair share of
   universal service costs.


These are EFF's primary concerns about the bill.  We hope to broaden our
position and understanding of the bill based on the views of other
interested groups.  This is a summary of the main points of the legislation
along with EFF positions and comments.




OPEN PLATFORM


        Open platform service is designed to give residential subscribers
access to voice, data, and video digital telephone service on a switched,
end-to-end basis.  With Open Platform service widely available, individuals
and organizations would have ready access to a variety of important
applications on the information highway, including distance learning,
telemedicine, telecommuting, the Internet, and many more.  The bill directs
the Federal Communications Commission to investigate the policy changes
needed to provide open platform service at affordable rates, but fails to
require telecommunications carriers to tariff the service.


ACTION NEEDED:  The Open Platform concept should be enthusiastically
supported, but the bill as written fails to ensure that Open Platform
service will be widely available at affordable rates.  Those who care about
affordable, equitable access to new information media should demand that
local telephone companies be required to tariff Open Platform services
within a specific timeframe.


ENTRY OF TELEPHONE COMPANIES INTO VIDEO PROGRAMMING


        The bill promotes the entry of telephone companies into video cable
service and seeks to benefit consumers by spurring competition in the cable
television industry. The bill would rescind the ban on telephone company
ownership and delivery of video programming that was enacted in the Cable
Act of 1984.  Telephone companies would be allowed to provide video
programming, through a separate subsidiary, to subscribers in its telephone
service area.


        Telephone companies would be required to provide video services
through a  "video platform," that would be open, in part, to all video
programming providers.  The bill adopts a set of regulations originally
proposed by the Federal Communications Commission (FCC) called "Video
Dialtone."  Under video dialtone rules, telephone companies would be
required to allow other content providers to offer video programming to
subscribers using the same video platform as used by the telephone company,
on a non-discriminatory basis.  Other providers would be allowed to use up
to 75 percent of the video platform capacity.  To encourage telephone
companies to actually invest in new information infrastructure, they would
be prohibited from buying existing cable systems within their telephone
service territory, with only tightly drawn exceptions.


        However, the video dialtone requirement would end in five years,
after which telephone companies would have no requirement at all to provide
non-discriminatory access to their video platform.


ACTION NEEDED:  Video dialtone is a useful starting point for structuring
non-discriminatory video access, but its provisions must be strengthened.
First, there should be no fixed expiration date for the video dialtone
requirements.  An open platform for video information is critical to the
free flow of information in society.  These requirements should be relaxed
only when it is clear than there are sufficient alternatives throughout the
country for distribution of video and multimedia information  Alternatives
would include widely available, affordable Open Platform service capable of
carrying full-motion, video programming.   Second, stronger safeguards
against anti-competitive behavior are necessary.


UNIVERSAL SERVICE


        One of the goals of the bill is to "preserve universal
telecommunications at affordable rates."  To achieve this goal, the bill
would establish a joint Federal-State Board (made up of FCC members and
state regulators) to devise a framework for ensuring continued universal
service.  The Board would be required to define the nature and extent of
the services encompassed within a telephone company's universal service
obligation.  The Board also would be charged with promoting access to
advanced telecommunications technology.


        The FCC is required to prescribe standards necessary to ensure that
advances in network capabilities and services deployed by common carriers
are designed to be accessible to individuals with disabilities, unless an
undue burden is posed by such requirements.  Additionally, within one year
of enactment, the bill requires the FCC to initiate an inquiry to examine
the effects of competition in the provision of both telephone exchange
access and telephone exchange service furnished by rural carriers.


ACTION NEEDED:  Include an explicit requirement that advanced digital
access services be included in the universal service definition as soon as
is practical.  Create a mechanism for public interest participation in the
process of defining the components of universal service in the information
age.


VIDEO PLATFORM AND FRANCHISE REQUIREMENTS


Any telephone company that establishes a video platform would be required
to meet 1992 Cable Act standards concerning customer privacy rights,
consumer protection, and customer service.  Telephone companies would be
required to meet the same standards as cable companies for diversity in
commercial programming, to assure that the broadest possible information
sources are made available to the public.  Like cable companies, telephone
companies would be required to comply with public, educational, and
governmental (PEG) access rules.  Telephone companies also would be
required to meet standards concerning re-transmission consent for cable
systems.


Some Cable Act requirements concerning cable companies would expressly not
be applicable to telephone companies. These include: general franchise
requirements; franchise fees; regulation of rates; regulation of services,
facilities, and equipment; consumer electronics equipment compatibility;
modification of franchise obligations; renewal proposals; conditions of
sale; unauthorized reception of cable service; equal employment; limitation
on franchising authority liability; and coordination of federal, state, and
local authority.


Instead of Cable Act compliance, the legislation provides that a video
programming affiliate of any telephone company that establishes a video
platform would be subject to the payment of fees imposed by a local
franchising authority. The rate at which these fees would be imposed cannot
exceed the rate at which franchise fees are imposed on any operator
transmitting video programming in the same service area.




LOCAL COMPETITION


        In order to promote competition in local telecommunications
service, the bill requires that local telephone companies open their
networks to competitors who wish to interconnect with the public switched
telephone network.  These interconnect rules will enable any other network
operator to offer basic telephone service as well as advanced data services
in direct competition with the local phone company.  The FCC would be
required to establish rules for compensating local telephone companies for
providing interconnection and equal access.


ACTION NEEDED:  Local competition can be a benefit to consumers and spur
the development of innovative new services, as long as all interconnecting
networks pay their fair share of the cost of using the public telephone
network.  All who interconnect should be required to support the cost of
basic universal service.


For More Information Contact:


Daniel J. Weitzner, Senior Staff Counsel <djw () eff org>


Copies of the legislation and this summary are available on EFF's Internet
FTP site: ftp.eff.org, in the folder /pub/eff/legislation/HR3636 and
HR3636-summary.




......................................................................
Daniel J. Weitzner, Senior Staff Counsel              <djw () eff org>
Electronic Frontier Foundation                        202-347-5400 (v)
1001 G St, NW  Suite 950 East                         202-393-5509 (f)
Washington, DC 20001


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