The Hindu Business Line : Of pizzas and pets, cars and ICE

Pizzas and information services have just the `byte' in common, you might think. But this research paper sees more to the matter of definitions and the delivery of services.

WHAT do pizza delivery and information services have in common? Both are for the byte, you may reply. But Robert M. Frieden, Pioneers Chair and Professor of Telecommunications at Penn State University (www.psu.edu) sees more in the question. It is the title of his recent research paper posted on www.ssrn.com.

Among his papers are `Unbundling the Local Loop: A Cost/Benefit Analysis for Developing Nations' and `Killing With Kindness: Fatal Flaws in the Universal Service Funding Mission and What Should be Done to Narrow the Digital Divide,' as one learns from his personal homepage. There, he informs about his upcoming sabbatical also; that's when he wants to pursue "projects that decode, simplify and explain the complex, daunting and off-putting nature of telecommunications and information policy."

Now, the pizza study on hand seeks to draw `lessons from recent judicial and regulatory struggles with convergence' and, therefore, is of interest not only to tech-ies and comm-ies but the law professionals too who may like to look at the comparative Indian law on the subject.

Dated definitions

"Congressionally crafted definitions of cable, information and telecommunications service used by the Federal Communications Commission (FCC) to make key policy and regulatory decisions no longer provide clear direction in light of technological and marketplace convergence," declares Frieden right at the start, referring to the dated definitions working as flaws in the US law. So, let's first look at the terms, explained through ample footnotes in the paper.

For instance, cable service is "(A) the one-way transmission to subscribers of (i) video programming, or (ii) other programming service, and (B) subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service." (47 USC {frac14} 522(6))

Information service is "the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilising, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service." (47 USC {frac14} 153(20))

Telecommunications is "the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received." (47 USC {frac14} 153(43))

Telecommunications service means "the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used." (47 USC {frac14} 153(46))

Law outpaced

The simple message in the paper that in the race between technology and law, the latter is trailing, and so there is a lot of catching up to do. "Technological convergence has outpaced the ability of both Congress and the FCC to anticipate and respond to changed circumstances," writes Frieden, to emphasise the need to rewrite the Communications Act of 1934 (`last substantially amended in 1996') lest the FCC apply "a limited number of mutually exclusive service definitions to new services that frustrate compartmentalisation".

Law draws a blank when confronted with `converged ICE services' in the `information, communications and entertainment' space. For, such services "may incorporate two or more regulatory classifications depending on how service providers and end users configure services".

Frieden points out the growing trend of "software and other applications, riding on top of basic digital bitstream transmission," generating services that integrate previously discrete telecommunications, information and cable services. "Similarly ICE ventures seek to achieve economies of scale and scope through vertical integration that combines basic transmission of digital bits with software and other value adding enhancements," he adds.

No silos, please

A detailed footnote points to several essays that advocate "a fundamental shift in telecommunications regulation from one based on service definitions and mutually exclusive regulatory silos to one that subdivides services into two or more horizontal layers based on functionality." If that's causing you to shift, Frieden would explain, citing `The Layers Principle: Internet Architecture and the Law' by Lawrence B. Solum and Minn Chung, that the `horizontal approach' typically uses "layers based on an Open System Interconnection model for conceptualising the stack of protocols and technological functions that combine to provide computer and communications networking such as that provided via the Internet."

What happens when the FCC shoehorns services into `static and limited regulatory classifications' that the law provides? Services get reclassified. An example that Frieden provides is about a telephone company providing Digital Subscriber Link (DSL) service classified as `information service', though earlier it had been identified as `telecommunications service'.

"By ignoring or subordinating the telecommunications component in DSL the Commission assumes it lawfully can reclassify it as an information service like cable modem service, with necessary telecommunications bit transport considered an integrated and subordinate component," comments the author.

Reclassification can be inconsistent too. "For example, the FCC already has deemed some types of Internet-mediated telephone services as fitting within the information service classification," notes the paper. "Other more sophisticated and versatile forms of Internet telephony, commonly referred to as Voice over the Internet Protocol (VoIP), also may fit within this category." However, VoIP operators are seen as providing `telecommunications services' for the purpose of cooperating with `law enforcement officials seeking wiretaps'.

Pizzas and pets

Frieden refers to a must-read case of the US Supreme Court, National Cable & Telecommunications Association vs Brand X Internet Services (June 27, 2005). For, it is an evidence of `significant confusion in understanding converging telecommunications and information processing technologies'.

In the simple words of Frieden, the facts of the case are as follows: "The Court had to determine whether cable television companies providing access to the Internet offer an information service, subject to quite limited regulation, or a telecommunications service, subject to possibly more government oversight."

What makes the case interesting is that "both the majority opinion and a dissenting opinion used curious analogies". Such as? "Packaged services in automobile manufacturing, pet stores and pizzerias." But why were analogies required? For conceptualising the convergence of telecommunications and information processing services and "to support the view that the FCC lawfully could ignore or subordinate the telecommunications function".

First, the automobile analogy: "One might well say that a car dealer `offers' cars, but does not `offer' the integrated major inputs that make purchasing the car valuable, such as the engine or chassis," reads one of the many snatches from the judgment where the majority looked at "examples where a venture offers a number of services, many of which combine into a consolidated package, and others that are made available, but are not essential."

But Justice Scalia had dissented. He didn't agree that "the FCC could lawfully and practically treat the telecommunications link as not separable from the predominate information processing services provided," as Frieden explains in the paper. Justice Scalia disputed the Commission's view that "cable television companies do not provide a telecommunications service when linking subscribers physically apart from the content they access."

And, here's where the pizza analogy comes in. Justice Scalia said we couldn't ignore the fact that `pizza baking and pizza delivery constitute two separate elements of the pizza business'. Read on: "It is therefore inevitable that customers will regard the competing cable-modem service as giving them both computing functionality and the physical pipe by which that functionality comes to their computer — both the pizza and the delivery service," as Frieden's paper helpfully informs.

However, the majority was not in a mood for the pizza. They rejected Justice Scalia's analogies "by noting that customers can pick up pizzas rather than have them delivered and at pet stores buy dog leashes without also having to purchase a dog." What a travel - from pizzas to pets, cars to ICE!

Frieden is of the view that the use of `simplistic, but competing analogies within Supreme Court' show that legal experts are struggling to conceptualise information processing, "even as they appear to have little sense of how most consumers soon will access ICE services and what kinds of traditional consumer safeguards remain essential."

A paper worth a thorough read if you are hungry enough!

ITworks@TheHindu.co.in

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