Commentary By Steve Effros OF DONKEYS AND STONES The House Commerce Committee released a "Staff Draft" of a telecommunications bill the other day. Reading it, I couldn’t help but be reminded of my grandmother’s phrase: "…even a donkey doesn’t trip over the same stone twice!" Well, in this case both donkeys and elephants seem to be tripping all over themselves. It’s a stunning example of not learning from history. I know that history. In 1971 I was the staff lawyer at the FCC responsible for drafting the original FCC rules regarding cable franchising. I chaired the "Federal, State- Local Advisory Committee" examining the appropriate regulatory roles regarding cable. And here we are again, this time with a staff draft that steamrolls states and cities, and turns the regulatory structure on its ear, trying to federalize virtually everything having to do with "BITS" and "Broadband Video Service". There is a certain irony to having listened to the speeches (characterized as "questions") last week in the Roberts confirmation hearings, with members of congress confused and angry that judges don’t seem to understand the "clear, plain English" language of congressional mandates, and then reading this staff draft. A "BIT"? Well, since the late 1940’s that has commonly stood for "binary digit". It’s the yes/no, on/off of computer language, right? Not in this draft. "BIT" now stands for "Broadband Internet Transmission." Way too cute, and confusing. In this draft, BITS would transmit bits. And a "Broadband Video Service Provider"? Well, we don’t really know what that is, since the draft definition seems to include any cable operator offering a "triple play" of services. I don’t think that’s what they meant, but that’s what they said. They apparently were aiming to make a distinction between cable and video distributed by Internet Protocol packets, but why? Why does a cable operator still need a franchise (until, presumably, they switch to IP transmission and then suddenly the franchise disappears and the whole thing is regulated "exclusively" at the federal level), but anyone providing "Broadband Video Service" needs to "register" with the feds and no franchise is needed? We made all the mistakes writing the original cable rules, and today’s lawmakers seem intent on repeating them. "Registration" certificates at the FCC (we called them "Certificates of Compliance," but abbreviated them "CAC" after someone realized the more obvious acronym might cause some upset). Under this draft, the feds are responsible for policing redlining and line extensions in local communities, and all the rules must be written in 180 days! Are they kidding? This thing is a disaster, written by people who are trying to distinguish not services, but the technologies and protocols used to distribute services and treat them differently. A huge mistake. Like services should be treated alike. Forget trying to "guess" at technology, you’ll always be behind the curve. Remember, the ’96 Act missed the Web! The irony is that the staff draft is written in such a way that there is no apparent difference between "broadband video service," a plain English term that the cable industry has been using for years, and cable’s triple-play offering. If left the way it is, all franchises would soon be voided. Or, if they really meant "IPTV" only, and said so, then the bill might apply to SBC’s new service, but not Verizon’s! The staff should learn from history. Don’t try to re-invent the cable franchise regulation wheel. It fell off the last time.

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