Conflicting Regulatory Silos Keep Popping Up

One of the problems everybody faces as we move increasingly to a world of IP-enabled communications, information and entertainment is that a growing clash is occurring, piecemeal, between historically-distinct regulatory silos. Whether we can stumble forward forever, without acknowledging the end of regulatory silos, as well as technology or industry silos, remains open to question.

The problem is simply that different sorts of activities and businesses are governed by distinctly-different frameworks. Magazines and newspapers, for example, operate under First Amendment "free speech" rules and have virtually no "common carrier" obligations.

TV and radio broadcasters operate under different rules, with more limited "free speech" rights (broadcasters do not enjoy unrestricted rights to transmit any sort of content). Cable TV regulation is more akin to broadcasting than telecom regulation, but there are some tax and local franchising rules that are more akin to common carrier businesses.

Telecom companies operate under the most-restrictive rules, with legal requirements to interconnect with other telecom service providers and deliver their traffic. Data services and content generally have been immune from these rules, though. That's why the Web, and Web content, have developed essentially as a zone of freedom.

Of course, in the U.S. market there is more talk about "network neutrality", a troublesome issue not because of the immediate implications some attribute to it, but because it is just one more examples of how the old "silos" of regulation are breaking down, and becoming intellecutually incoherent in a world where media, TV, radio, music, talk, testing, Web surfing and data communications all occur over one physical pipe.

Should that not require some harmonization or revamping of the fundamental regulatory regimes each of the media types up to this point has enjoyed? And here's the crux of the matter: how does one square first amendment, "zone of freedom" rules historically applied to newspapers, magazines, data services and the Web, with common carrier rules applied to telcos, or the quasi-regulated broadcasting industry?

The fact that delivery modes change does not alter the zone of freedom newspapers, magazines and other media, even "Web media" are supposed to have. And the U.S. courts have ruled that corporations do possess rights of free speech as well. So the issue is whether the zone of freedom is expanded or contracted as multiple media types are delivered over IP pipes.

So it is that some consumer and public advocacy groups are urging the Federal Communications Commission to declare that "short code" text messages deserve the same nondiscriminatory treatment by telephone carriers as email and voice messages.

So are "short codes" advertising, a direct response mechanism, or are they "speech." And whose "speech" rights are supposed to be protected? Those of the speaker, as the early founders seemed to think, or the rights of the "listener," as jurists increasingly have argued over the past 50 years or so?

The issue is more complicated than sometimes positioned. Text messaging services might include a "zone of freedom" in terms of what is said. But note that the freedom is for the speaker. But who is the "speaker" whenever we are looking at media?

The Washington Post might not accept advertising from its competitor, the Wall Street Journal. Verizon Wireless might not accept ads from Sprint or T-Mobile. Cable companies don't take ads from telephone companies marketing competing services. In those cases, rights of speech are exercised by a "speaker." A TV, cable or radio network has the right not to allow speech (advertising also is speech) to be paid for and transmitted.

The fundamental problem is that as IP pipes carry virtually all communications, information and entertainment, we are going to see more disjointed efforts to regulate "unlike" things in "like" ways. That will be the corollary to regulating "like" things in "unlike" ways.