From mech  Mon Mar 14 19:33:52 1994
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Date: Mon, 14 Mar 1994 19:33:52 -0500
From: Stanton McCandlish <mech>
Message-Id: <199403150033.TAA28939@eff.org>
To: mech
Subject: Edward D. Horowitz - Viacom Broadcasting
Status: RO

  	        PREPARED REMARKS BY EDWARD D. HOROWITZ,  
   
                      CEO, VIACOM BROADCASTING,  
   
                BEFORE THE HOUSE ENERGY AND COMMERCE,  
   
             TELECOMMUNICATIONS AND FINANCE SUBCOMMITTEE   
    
                   TOPIC: INTERACTIVE VIDEO-SYSTEMS   
    
                  2322 RAYBURN HOUSE OFFICE BUILDING   
    
                      TUESDAY, FEBRUARY 01, 1994   
    
     MR. HOROWITZ:  Viacom's view of the appropriate role for 
content providers in this emerging new world can be summarized as
follows:  
     
     1.  We believe open access for all programmers is essential. 
The single packager, exemplified in the broadcasting and cable 
television models of today, no longer needs to control access to
product.  In addition, the level of vertical integration between
content providers and distributors must be carefully controlled,
so that a firm with powerful interests in cable systems, transport
technology and programming does not have the ability or incentive
to act as a gatekeeper to discriminate against independent 
programmers in favor of its own programming.   
    
     2.  WE believe the telecommunications superhighway should be
content and identity neutral.  What that means is that, as on an
actual highway, a toll is paid to gain access to the highway and
that toll is not determined by what a particular vehicle is 
carrying or the owner of that vehicle.  Like the telephone company
today, people should pay based on how much they use the 
superhighway, not on what they say or do on it or who they are. 
     
     3.  We believe there is no legitimate gatekeeper function to
be served other than for security purposes.  All other gatekeeper
functions are simply bottlenecks, which will serve to limit the 
flow of information to the consumer and increase its retail cost. 
Today's local telephone service might offer a good model in terms
of security. Each customer has his or her own phone number or 
access code, but that code does not restrict the different regional
or long distance telephone services through which one can gain 
access.  Multiple keys or "smart cards" may offer similar security
and open access to the subscriber of tomorrow's electronic  
superhighway.   
    
     4.  A centralized authorization system will not promote the
goals of open access, interoperability or unlimited capacity,  
unless it is structured as an open, free-trade zone.  Each  
programmer should be charged the same amount for authorization  
access and any programmer willing to pay the fee should be  
included.  The government should ensure that whatever digital  
compression protocol is established not be proprietary in nature.
 
  
(END OF SUMMARY)   
    
(COMPLETE REMARKS)   
    
     MR. HOROWITZ:  Good morning Mr. Chairman and members of the
Subcommittee.  My name is Ed Horowitz and I am Senior Vice  
President of Viacom International Inc.

     Viacom international Inc is a diversified entertainment and
communications company, which employs approximately 5,000 people
worldwide.  At the core of our company is Viacom Networks, which 
consists of MTV Networks and Showtime Networks, Inc.  MTV Networks
includes three advertiser-supported, basic cable television  
networks: MTV: Music Television; VH-1/Video Hits One and  
Nickelodeon/Nick at Nite.  Showtime Networks Inc. operates three
premium television networks:  Showtime, The Movie Channel and FLIX.

     We are also joint owners of Comedy Central, Lifetime and All
News Channel; three additional advertiser-supported, basic cable 
networks.  Our cable division owns and operates television systems
that serve approximately 1.1 million customers.  Our broadcast  
division, of which I also serve as Chairman and Chief Executive 
Officer, owns five television and 14 radio stations.  Through our
entertainment division, we produce programs for the broadcast  
networks and for first-run syndication. Our new media group is  
working to develop, produce, distribute and market interactive  
programming for the stand-alone multimedia and interactive  
marketplace, which is fast emerging.   
    
     Viacom has recently entered into a definitive merger agreement
with Blockbuster Entertainment Corporation under which Blockbuster 
_ a global leader in the entertainment industry and the world's 
largest home video retailer, as well as one of the world's largest
music retailers _ will merge into Viacom.  Completion of this  
merger is pending shareholder approval and customary regulatory 
review.  
  
     As has been widely reported in the news, Viacom is also  
seeking to merge with Paramount Communications Inc., a prominent
leader in the global entertainment and publishing marketplace.  

     I am particularly pleased to have this opportunity today to 
share our perspective on the coming telecommunications information
infrastructure and the particular significance we attach to the 
principle of open access.  I applaud you, Mr. Chairman, as well as
Mr. Fields _ the Ranking Minority Member on the Subcommittee _ for
you leadership in closely examining the important public policy 
concerns relating to this approaching telecommunications  
revolution, especially in light of the dizzying pace of  
technological and business developments.   
    
     At this critical stage of development, it is imperative that
we create a system without artificial barriers at any point along
the "electronic superhighway."  Otherwise, we run the risk of  
restricting consumer choice for decades to come, effectively  
undermining the very promise of the National Information  
Infrastructure (NII).  It is vital that we neither stall the NII's
development, not curtail its full promise by taking roads today 
that may lead to dead-ends tomorrow.  
     
     I think it is imperative that in examining particular aspects
of the NII _ such as the set-top box _ we affirm the principle that
any proprietary system must not have the effect of preventing or
restricting the ability of programmers to gain access.  The set-top
box must be able to accommodate all sources of information and  
various transport formats, if it is to be truly compatible with the
other elements of the telecommunications superhighway.  This  
linkage is vital to a National Information Infrastructure built 
with open architecture.  Any company that suggests it is building
an open system, but is placing a proprietary transport layer on it
data signal is not, in fact, creating an electronic superhighway
with open access. Not all systems, presently being discussed as 
examples of open architecture, may prove to be truly open in the
final analysis.  
     
     Viacom intends to be an active participant in the development
of an industry position on these issues.  We have advocated the 
wide scale adoption by the cable industry of an open  
standard-based, video signal compression system.  This protocol,
known as main profile, main level, full resolution MPEG2, was  
developed by the Motion Picture Experts Group.   
    
     For the last 50 years, television has offered Americans an 
ever increasing variety of entertainment and informational  
programming.  The advent of cable television and  
satellite-delivered networks has been singularly responsible for
the relative explosion in programming choice.  There are now 92 
cable TV networks in operation.  The traditional three over-the-air
broadcast TV networks (ABC, CBS, NBC) have since expanded to five
(PBS and Fox) and will soon increase to seven (Paramount/Chris  
Craft; Time Warner/Tribune).   
    
     Still, the model for delivery of these program options has not
changed much.  The local distributor _ whether it be the cable  
system or the local broadcast station _ has functioned as the  
gatekeeper. What reaches the consumer in the end is determined by
these system and station managers.  And, while cable has increased
the available "shelf space" tremendously _ first to 12 channels,
then 36, now 72, and in certain cases even 150 channels _ the  
gatekeeper function has not fundamentally changed.   
    
     What has changed is that technology is now giving us the  
ability to hand over the keys, once held by the gatekeeper, to the
individual consumer.  Digital compression makes the transmission
of hundreds of channels technologically and economically feasible
on the existing delivery system.  Digital compression is at the 
heart of what makes the electronic superhighway possible.   
Video-on-demand, multiplexing and interactive multimedia  
applications are all possible through the convergence of the  
television set and personal computer through digitization.   
    
     The development of digital compression technology has been 
characterized by a struggle between advocates of an open, universal
standard for the compressed signal, where equipment developed by
various manufacturers would be compatible, on the one hand, and 
those who favor a technology based on a closed, proprietary system,
on the other.   
    
     How this struggle has played out in the non-broadcast, TVRO
marketplace may be instructive of identifying potential problems
ahead in the constructif thNational Information Infrastructure. 
Virtually all programming services that transmit scrambled  
programming signals by satellite to this market use General  
Instrument's proprietary, closed "VideoCipher"  
encryption/decryption system. Accordingly, VideoCipher has become
the de facto industry standard.  
     
     In any business, the first manufacturer to get its product 
into customer's homes has an advantage since late-comers will have
to adapt to what's already established, and possibly pay a  
licensing fee to use the leading technology.  If the first set-top
boxes, which can process digital compression, use a proprietary,
closed compression technology, such as, but not limited to, GI's
DigiCipher II, or fail to come into full compliance with agreed 
upon industry standards, such as MPEG2, they have the ability to
create a bottleneck along the telecommunications superhighway.  
Lawmakers should be concerned about any proprietary system which
has or may have the effect of preventing or restricting the ability
of programmers to gain access.   
    
     There are two technological issues which I believe underlie
a thorough discussion of the National Information Infrastructure. 
One is the concept of capacity, which digital compression can make
into an almost unlimited resource.  But because it is technically
possible does not guarantee it will happen.  If we are not careful
to ensure that no artificial barriers can be erected on this new
electronic superhighway, we may simply be passing today's  
gatekeeper's keys on to a new gatekeeper.   
    
     Unlimited capacity will prove a hollow attribute, if the  
systems being created cannot speak to one another.  Accordingly,
Interoperability is the second technological issue before us.   
History is littered with technological advances that delivered less
than they promised because of artificial limits placed on them due
to proprietary technology.   
    
     The inventors, creators and developers of new hardware must
be rewarded for their efforts through fair and reasonable licensing
fees or other appropriate mechanisms.  But their reward should not
make them an essential facility," whereby these manufacturers could
deny others access through pricing or exclusionary practices.   
    
     Underlying the technological concerns bout Capacity, and  
Interoperability, there are two philosophical principles which are
key to appreciating the full promise of the National Information
Infrastructure:  1. Open Access and 2. Universal Service.   
    
     Open access, whereby information and program providers can get
on the electronic superhighway unimpedis amental.  Non-   
discriminatory access for providers and consumers alike could be
blocked by the abuse of proprietary technology and the undue  
vertical integration of firms capable of acting as gatekeepers. 
This would have a devastating effect on providers of information
and entertainment and also limit consumer choice.   Neither result
should be acceptable.  It is vital that policy makers examine  
claims of open access closely to ensure they are truly open for 
all.   
    
     Open access does not suggest programmers be provided a free
ride. Network operators must be guaranteed a profit, or the  
pipeline _ so central to the national Information Infrastructure
_ will never get built.  Viacom, as a program provider, recognizes
that owners of the telecommunication network must be compensated
fairly for the operation and maintenance of this vital pipeline. 
A reasonable rate of return should be assured.   
    
     Secondly, the concept of universal service is important if 
consumer acceptance of this new technology is to become widespread.
The more "on" and "off" ramps at the consumer level, the greater
number of software or programming options will be developed.  
     
     I do not mean to suggest, however, that each and every citizen
be guaranteed complete, unrestricted, unlimited access to the  
National Information Infrastructure.  To do so would be  
prohibitively expensive.  Clearly, there may be some basic level
of service that all citizens should have, much as we've come to see
the telephone as a "Lifeline" to essential services, such as  
police, fire and other key local service agencies.   
    
     Indeed in this new age of competition, policy makers will need
to re-examine concepts like cross-subsidies which have historically
permitted utilities, like the regional telephone companies, to  
serve unprofitable customers.  We will need to find new ways to 
bring at least minimum service to all customers.   
    
     We may conclude that access to the National Information  
Infrastructure _ if not guaranteed at the individual household  
level _ should at least be assured at the convenient community  
centers, which are easily accessible and open to the public.  I 
applaud Vice President Gore's challenge to the industry to provide
links from the information superhighway to classrooms, libraries,
hospitals and clinics nationwide.   
    
     All public policy should take into account a total picture of
the National Information infrastructure.  Each component should be
evaluated in terms of the other components and in light of the  
principles of open access, interoperability and unlimited capacity,
which I previously discussed.   
    
     The NII's major components include the source or origination
point of information, data and entertainment, as well as the pipe
or transportation system for delivering it.  Each component has the
potential for either expanding or restricting consumer choice.  
Depending on its configuration, each element can prove to be either
a pass key to the electronic superhighway or an intractable  
bottleneck.  
     
     The origination point or entrance to the electronic  
superhighway must be structured so as to permit as many program 
providers as possible.  Entrance fees should be based on an equal
levy determined by volume or time, but not based on content  
valuations.  Otherwise, we are simply re-establishing the role of
the gatekeeper.   
    
     Additionally, the creators of software products need to  
understand the rules of the road for this new highway, so their 
products can get on at any point in the nationwide network and flow
smoothly to the consumer located at various points along the  
network. These rules of the road should help us control traffic and
congestion along the network and permit us to be able to take  
advantage of new technical advances still to be discovered.   
    
     Lawmakers should also be careful to prevent the owners of the
pipeline from requiring consumers to buy-through various tiers of
service in order to get particular programming.  The buy-through
model, traditionally used by cable operators, should not be  
re-created on the telecommunications superhighway of tomorrow or
we risk limiting the promise of greatly expanded consumer choice.

     If the new cornucopia of information, data and entertainment 
is to move smoothly along the electronic superhighway, the pipe or
network needs to be compatible from end to end no matter what the
ownership configuration.  Creators of software need to know the 
appropriate formats and standards, so their products are compatible
with the "road."   
    
     What this means is whether the pipeline is twisted-pairs of
copper wire, coaxial cable or fiber optics;  whether the format is
analog or digital, it must be able to be interconnected as a  
seamless web.  We need to develop protocol standards that will  
ensure this development.  Otherwise, we risk creating bottlenecks
at each junction of the superhighway.   
    
     Finally, the user equipment necessary for the consumer to  
translate the stream of information, data and entertainment onto
his or her home display unit, must be configured so that full and
easy access is available.  It is imperative that we not create de
facto gatekeepers, by permitting only certain manufacturers of this
user equipment to hold the keys to the pipeline through which the
bounty of the electronic superhighway is made available.   
    
     The pipeline should be subject to regulations similar to those
proposed for the set-top box:  provisions for a reasonable rate of
return and open access requirements.  Perhaps the "all-channel  
Rule," which ensured that manufacturers of television sets would
not discriminate against any group or single program provider,  
might be used as model for establishing appropriate regulations 
governing the set-top box for the national Information  
Infrastructure.   
    
     The "unified" and "symmetrical" regulatory principles outlined
recently by Vice President Gore in his call for national   
telecommunications reform are certainly commendable.  I am  
concerned, however, with the "Title VII" concept as I understand
it.  If companies can elect "Title VII" status, we leave open the
possibility that some builders of the electronic superhighway may
choose to escape requirements for open, non-discriminatory access. 
The private sector should not be forced to face the "cross-fire of
conflicting and duplicative regulatory burdens," as stated by the
Vice President, but neither should we create a regulatory regime
which offers an escape hatch from open access requirements.   
    
     All regulations, without exception, should be based on the 
services that are offered and their ability to compete _ and not
on corporate identity, regulatory history or technological process.
The clearest way I know of achieving this goal is to ensure that
protocol standards and rules are adopted early on to govern the 
National Information Infrastructure's development.   
    
     A lesson from history can be instructive in this regard.  This
month, 90 years ago, an automatic fire alarm went off in the  
basement of Baltimore's John E. Hurst wholesale dry-goods  
warehouse.  Within minutes an explosion spread the fire to  
neighboring buildings and soon the fire was burning out of control.
An hour after the fire started, the Baltimore fire department's 
chief engineer sent a telegram to Washington urgently requesting
help.  The rescuing Washington firemen made the trip in a record
38 minutes by rail, but unfortunately found that their hoses would
not fit the Baltimore hydrants.  They wrapped them to the plugs 
with improvised canvas bandages, but by that time many businesses
had burned down.   
    
     By 1905 _ one year later, national standards for fire hoses
were adopted, but it took considerably longer _ decades in fact _
to retrofit the 600 different sizes and varieties of hose  
couplings, which were then being used in the United States.   
    
     Now is the time to insist on establishing protocol standards
and rules for the electronic information superhighway.  This will
assure open access on a non-discriminatory basis.  It will serve
to include, rather than exclude, the largest number of sources for
information, data and entertainment.  It will guarantee that the
pipeline is capable of connecting the greatest number of entrance
and exit ramps onto the superhighway.  And, it will permit user 
equipment to interface with all of these varied services,  
maximizing consumer choice.   
    
                                 END   
    

 


From mech  Mon Mar 14 19:34:22 1994
Received: from localhost (mech@localhost) by eff.org (8.6.4/8.6.4) id TAA28988 for mech; Mon, 14 Mar 1994 19:34:21 -0500
Date: Mon, 14 Mar 1994 19:34:21 -0500
From: Stanton McCandlish <mech>
Message-Id: <199403150034.TAA28988@eff.org>
To: mech
Subject: Hal M. Krisbergh - General Instrument Coporation
Status: RO

               TEXT OF STATEMENT PREPARED FOR DELIVERY
 
        BY HAL M. KRISBERGH, PRESIDENT, COMMUNICATION DIVISION

                     GENERAL INSTRUMENT CORPORATION
 
      BEFORE THE SUBCOMMITTEE ON TELECOMMUNICATIONS AND FINANCE

                               OF

           THE HOUSE COMMITTEE ON ENERGY AND COMMERCE 
  
                    MONDAY, FEBRUARY 1, 1994 
  
     Good morning, Mr. Chairman and members of the subcommittee. 
I am Hal Krisbergh, president of the GI Communications Division of
the General Instrument Corporation.  The General Instrument
Corporation is headquartered in Chicago and has major facilities
in Pennsylvania, Texas, California, North Carolina and New York. 
We are a world leader in the development and manufacture of
addressable set-top operating systems and other equipment for the
broadband cable, telephone, MMDS, satellite and DBS communications
markets.  We are also the leading developer of digital compression
technologies and equipment.
   
     Our June 1990 announcement that we would submit an all digital
HDTV system for consideration by the FCC as the U.S. advanced
television standard is recognized as the seminal event initiating
the so-called "digital revolution."  Importantly, it was that event
which also spawned the technological movement toward adaptation of
digital compression as a means to create quantum increases in the
number of channels that could be delivered over existing cable,
satellite and MMDS networks.  It is General Instrument technology
that is the basis of the often referenced 500 channel systems which
will be deployed later this year. 
  
     This digital compression revolution, together with the
extensive use of fiber optics and other advancements in information
utilization, most notably involving the Internet, on-line systems
and bulletin boards, have also been catalytic in the emergence of
a new national information infrastructure which is now commonly
referred to as the information superhighway. 
  
     As President Clinton expressed in his State of the Union
address this past week, the information superhighway is expected
to become a reality by the end of this century.  The foundation of
this infrastructure is being established at this moment by
countless private sector initiatives and investments.  As my
opening remarks indicate, General Instrument is at the vanguard of
this information revolution with related R&D spending planned to
exceed $100 million dollars in 1994, which represents over 10
percent of our anticipated division revenue. 
  
     In your invitation to testify before the subcommittee you
asked whether local network management operating systems, referred
to as set-top box operating systems, should have an open
architecture not unlike the one which currently exists between the
telephone network and the telephone.  You also asked if such
openness might be facilitated by a single set of industry-wide
standards possibly enabling consumers to be able to buy boxes from
third party vendors.
   
     The basis for these conclusions appears to be concern that
such local network management systems that receive information from
this "highway" and redistribute it to consumers will utilize
"proprietary" technologies that will foster a "closed access,"
non-competitive marketplace that could frustrate easy access to,
and use of, the superhighway by consumers. 
  
     First let me state that we believe that easy access to the
information superhighway must be available to both consumers and
potential service providers and that local network management
systems could not impede such access. 
  
     In my testimony, however, I will show that set-top operating
systems currently provide a similar open access architecture to the
telephone systems and that interface standards already exist which
enable the consumer to easily connect consumer products to cable
networks.  As the role of set-top terminals in cable network
management systems is understood, it will become apparent that
establishing interface standards between the set-top terminal and
the local network management system is unnecessary and
inappropriate.
   
     In fact, we believe that establishment of such industry-wide
interface standards will actually retard the ability of the
industry to grow and would raise significant concerns as to the
security of the systems and open the way to significant incursions
of privacy. Finally, there are, and soon will be, many alternative
and competitive ways for the consumer to gain access to the
information superhighway.   
  
     As Chart 1 shows, local telephone and cable network management
systems enable the system operator to bill, authenticate, secure
and efficiently handle communications between consumers and the
information superhighway in such a way as to appear transparent _
or neutral _ to such communications. 
  
     In the case of the telephone, the consumer connects it into
a telephone jack which is connected to a remote terminal, RT,
located outside the home.  In the case of a TV set, the consumer
connects it directly to a terminal located inside the home, the
set-top terminal. With both networks, the terminal devices enable
the consumer to connect any appropriate device such as a TV set,
computer or telephone using a standard connector, to many different
and proprietary, non- standard, local network management systems. 
Similar interfaces at the telephone central office or the cable
headend to a nationwide communication network, allow service
providers to easily connect to the local network management system
and thereby easily access the consumer. 
  
     The set-top terminal is an integral part of the cable network
management systems and there already exists a standard interface
between the TV set and the set-top terminal.  The relationship of
the telephone to the telephone network is analogous to the TV set
to the cable network.  Some have proposed that the interface
between the set- top and the network management system be
standardized.  This in effect would be equivalent to standardizing
the whole network as the set-to is an integral element in a cable
network management system.  This would be as illogical as requiring
the interface between the RT and the telephone network to be
standardized. 
  
     Simply put, cable network management systems utilizing set-top
terminals perform necessary administrative functions without
impeding the access between nationwide service providers and
consumers. Standard interfaces already exist which allow nationwide
services providers and consumers to easily connect to the network
and there is therefore no need for nationwide standards to be
developed.
   
     In addition, if a single nationwide standard is imposed on
set- top operating systems it will create serious concerns.  Over
the past 10 yeas significant expansion has occurred in the number
of channels and other services cable operators can deliver to
consumers.  Because TV sets last on average 14 years, they are not
capable of adjusting to the technological advances that cable
operators have been able to provide. 
  
     In order to address this inflexibility, cable operators have
relied on the ability to replace existing set-tops with more
advanced technology, which in turn enables these expanded services
to be provided without making already purchased TV sets obsolete.
Standardization of set-top operating systems will limit the
deployment of technological advances as it will freeze the current
state of technology, thereby significantly diminishing the
availability of new services to consumers.  This is exactly the
opposite effect that it was hoped such standards would create. 
  
     The current system of letting the competitive market forces
justify the need for deploying new technology in set-to operating
systems has worked well in the past and is already allowing a whole
new landscape of services such as digital compression, interactive
multimedia and broadband telephone to be provided competitively and
economically to the consumer. 
  
     Standardization is set-top operating systems could also raise
serious concerns related to security and potential invasions of
privacy.  It is the nature of broadband systems that transactions
and communications to individual homes are also accessible in all
homes in a given served area.  The integrity and security of this
network is crucial to preventing unauthorized access to this
information.
   
     Extensive industry experience has indicated that setting a
single nationwide standard provides a large target for the would
be hacker or pirates to break the system and once broken would
compromise the entire system.  The industry has instead taken the
approach of installing many different proprietary systems lessening
the size of the target and well as for allowing a logistically
feasible method of phasing deployment of new security technology
on an area by area basis.  The heart of achieving the most secure
systems is to ensure the lack of a  single standard which would be
readily available to a large number of individuals worldwide. 
  
     Retail sale of set-top terminals would be impractical as they
are not interoperable with other proprietary operating systems. 
This is also true of the sale of any component of a proprietary
telephone operating system, such as a line card of the remote
terminal.  In addition, commoditization of set-top technology for
retail sale would make attempts to insure the security of the
system at best very difficult.  It would also sacrifice leadership
in these important new industries. 
  
     Such sale, given the rapid changes in technology, would leave
the consumer with an obsolete product in a relatively short period
of time.  It would be better to leave the logistics of managing
such technological change to the system operator who can deploy
older terminals freely to other consumers who do not wish the more
advanced services. 
  
     Finally, any concerns as to the competitive environment that
cable operators face in the future should be eliminated with the
explosion of new alternative local distribution access systems (see
Chart 2) that are and will be deployed in the future.  Telephone
companies will be deploying broadband fiber optic networks which
will be capable of delivering a similar array of services to the
consumer. Multichannel Microwave Distribution Systems (MMDS) are
also currently being deployed throughout the U.S.  This year three
new Direct Broadcast Satellite services (DBS) will be launched to
further provide the consumer with additional alternative access
options.  Cellular telephone (two providers in each area) can also
provide for competitive access as well as the proposed PCS services
(seven providers in each area) will also add to this list. 
  
     In summary, set-top operating systems provide for the same
important open access architecture as today's telephone systems.
Standards already exist between local network management systems
and therefore do not need to be established.  The demands of
insuring the consumer has access to the most recent developments
in technology, as well as protecting the consumer from potential
invasion of privacy, further point to the dangers of creating
nationwide standards and allowing the commoditization and retail
sale of such critical elements of the broadband operating system
as the set-top terminal.   

 


From mech  Mon Mar 14 19:34:39 1994
Received: from localhost (mech@localhost) by eff.org (8.6.4/8.6.4) id TAA29020 for mech; Mon, 14 Mar 1994 19:34:38 -0500
Date: Mon, 14 Mar 1994 19:34:38 -0500
From: Stanton McCandlish <mech>
Message-Id: <199403150034.TAA29020@eff.org>
To: mech
Subject: John Hendricks - Discovery Communications Inc.
Status: RO

              TEXT OF STATEMENT PREPARED FOR DELIVERY BY

         JOHN HENDRICKS, CHAIRMAN AND CHIEF EXECUTIVE OFFICER

                     DISCOVERY COMMUNICATIONS, INC

       BEFORE THE COMMITTEE ON TELECOMMUNICATIONS AND FINANCE

             OF THE HOUSE COMMITTEE ON ENERGY AND COMMERCE
 
                      TUESDAY, FEBRUARY 1, 1994
 
     MR. HENDRICKS:  Mr. Chairman, members of the subcommittee, my
name is John Hendricks, and I am founder, chairman and chief
executive officer of Discovery Communications, Inc.  I appreciate
the opportunity to appear before you today to share our company's
views on the future of digital, interactive video systems.
 
     Discovery is a privately-held multimedia company which manages
and operates The Discovery Channel and The Learning Channel, as
well as businesses in home video, interactive video, publishing,
merchandising and international program sales and distribution.
Discovery has four shareholders, John S. Hendricks  Cox, TCI and
Newhouse, and is a vertically-integrated programming service.
Although no single shareholder has majority control of Discovery,
the combined ownership of cable operating companies is over 51
percent.
  
     Discovery has been at the forefront in developing a
technologically advanced program packagand very system that will
permit virtual video-on-demand access to top television shows
supplied by broadcast, cable and independent sources.  Our system,
known as Your Choice TV, is based on the latest advances in
computer technology, as well as the most sophisticated digital
compression techniques available.  This satellite-based interactive
program package and delivery system will require not only the use
of a remote control device and a set-top terminal, but also a
national operations center, which will digitally compress and
package programming for transmission via satellite.  It is
anticipated that the remote control devices and set-top terminals
will be supplied by third-party manufacturers.
 
     Your Choice TV is possible because of the tremendous
technological advances that have been made recently in compression
techniques, digitalization and fiber-optics.  Of course, Discovery
is not alone in attempting to capitalize on this progress.  Other
entities are seeking to meet consumer needs as they see them and
in different ways.
 
     It is clear that this environment of technological change
holds great promise for the American public as well as domestic and
international businesses.  This entrepreneurial environment
benefits the nation.  Consumers will receive greatly increased
choices of video programming, new interactive services, and the
ability to access numerous data networks.  New markets and
submarkets will develop and new and existing companies will rush
to meet consumer demands. Domestic and international trade will
grow and new jobs will be created.  As a participant in this
"revolution," I can tell you I am very optimistic about the future.
 
     One concern I have, however, is that, without a standardized
transmission infrastructure, these new services and new jobs will
not be created as quickly as otherwise would be the case.  To
ensure there is no problem in this regard, I believe it is
imperative that an open architecture standard be established for
the transmission of such services to any American consumer. 
Universal services and robust competition require a universal
transmission standard _ a standard that will allow technological
advances to be incorporated quickly and efficiently into the
national information superhighway.
 
     To achieve this goal, we must create a market environment
capable of promoting an open architecture standard for advanced
digital cable systems.  To create the type of open architecture
that we, as content providers, need, this standard-setting process
must primarily focus on the digital transmission format.
 
     Such transmission standards should specifically concentrate
upon, one, the channelization and transmission format; addressing
signals to control subscriber equipment from a central location;
and three, encoding or scrambling signals that are used to protect
the security of services.  In short, service providers should be
able to reach any consumer with one transmission.
 
     The first important aspect of this approach is to simply agree
upon a standard for digital video transmission.  In this regard,
Discovery fully endorses the MPEG-2 standard and encourages its use
for all direct to home, cable-cast and file-server based digital
video systems.  Once this and other transmission standards are in
place, programmers, cable operators, telephone companies and
equipment manufacturers can proceed to develop products and
services in a coherent and rational manner.  Within 12 months, we
expect that the cable industry will have settled upon MPEG-2 as the
digital transmission standard and that other interactive
addressable signal standards necessary for conducting transactional
communications will have also been universally adopted within the
cable delivery infrastructure.  I am less clear about the
transmission delivery standard-setting process in the very
different switched networks being built by the telephone companies.
 
     Another concern which I have relates to the concept of open
access which has received so much attention lately.  For the
foreseeable future there will continue to be technological
constraints with respect to the distribution of video signals.  In
a 500-channel world it will simply not be possible for everyone who
wants to participate in the video marketplace to do so.  Congress
and the FCC should continue to ensure that the distribution
marketplace is a free and open one, open to all competitors _ as
they did with the program access provisions of the 1992 Cable Act. 
However, the government should not create barriers to technological
development by imposing mandatory access requirements on
distributors which would have the effect of strangling new
distribution businesses with low-consumer demand services.
 
     Finally, let me state that content businesses _ data, video,
interactive and retail _ developed for the national information
superhighway will and must overcome the traditional challenges that
face any new enterprise in our free economy.  These challenges
include, one, satisfying a real market demand; two, developing and
implementing an effective national promotion plan; securing
adequate capital to finance initial operating losses; and four,
eventually producing annual revenue that exceeds expenses.  If
digital transmission delivery standards are adopted and are well
publicized, then numerous competitors will emerge to confront the
above four challenges which, together, continue to fuel the hearts
of American entrepreneurs.
 
     Thank you again for the opportunity to appear before you
today, and I look forward to your questions.
 

 


From mech  Mon Mar 14 19:35:00 1994
Received: from localhost (mech@localhost) by eff.org (8.6.4/8.6.4) id TAA29053 for mech; Mon, 14 Mar 1994 19:34:59 -0500
Date: Mon, 14 Mar 1994 19:34:59 -0500
From: Stanton McCandlish <mech>
Message-Id: <199403150034.TAA29053@eff.org>
To: mech
Subject: Wayne Rosing - Sun Microsystems Inc.
Status: RO

                      TESTIMONY OF WAYNE ROSING, 

       CORPORATE EXECUTIVE OFFICER OF SUN MICROSYSTEMS INC.

				 AND  

         PRESIDENT, FIRSTPERSON, INC. A DIVISION OF  SUN 

   BEFORE THE HOUSE SUBCOMMITTEE ON TELECOMMUNICATIONS AND FINANCE 
 
                      TUESDAY, FEBRUARY 1, 1994. 
  
     MR. ROSING:  I would like to thank Chairman Markey and
Congressman Fields for inviting me to testify before their
committee today.  This hearing will contribute to the debate on how
the government can help make sure that all Americans have the
opportunity to participate in the new information age. 
  
     Although the national information infrastructure (NII) will
continue to evolve over the rest of this decade, a number of key
architectural decisions made today will shape it entire future. 
Among these decisions are the questions of how to guarantee
universal access and choice and whether monopoly control of key
interfaces will be allowed. 
  
     The NII is envisioned as a network of networks, connecting
multiple sources of data, education, services, and entertainment
with homes, schools, businesses, and government.  When widely
deployed, it will enable entirely new ways of learning, working,
selling, consuming, and communicating.  The socioeconomic impact
of this "Information Superhighway" is widely expected to exceed the
impact of a physical superhighway _ the interstate highway system
_ built during the 1950s and 1960s in the United States. 
  
     A key element to the successful development of the NII is
interoperability.  Each of the pieces of the NII must be able to
communicate with the other pieces:  that is, to interoperate.
Interoperability is what allows systems with multiple components
to work together, and it creates the opportunity for the existence
of competing, interchangeable implementations.  Interoperability
assures a level playing field for businesses interested in
providing products and services for the NII:  it also guarantees
consumers the widest possible range of choices at competitive
prices.  This 
interoperability will require the establishment of widely accepted,
standard interface specifications.  Interfaces are the on-ramps and
off-ramps to the Superhighway.  Interface specifications are the
maps that tell drivers how to go from one road to another. 
  
     The national information infrastructure will have a number of
critical interfaces:  for example, the interface where consumers
attach the "set-top" box to the network; and at the other end,
where content providers enter the digital superhighway to
distribute their information services.  The use of standard
interfaces in the NII is critical because without such agreed-upon
interfaces, the Information Superhighway would remain just a
collection of unconnected dirt roads. 
  
     A crucial distinction in the formulation of public policy must
be made between interfaces and implementations.  Interface
specifications are pieces of paper; implementations are actual
products or services. For example, the ISO specification for 35mm
ASA 100 film is an interface specification.  It defines the size
of the film, the spacing of the sprocket holes, and how the film
will respond to light.  The interface specification enables
multiple manufacturers to produce cameras which can use the film. 
Each of them competes on the value of their implementations.  No
one attempts to profit by controlling the spacing of the sprocket
holes or the size of the film can. 
  
     An interface specification does not define the "recipe" for
a product.  It would not, for example, specify the chemical
ingredients of the film nor provide the instructions for how the
film is made. Such a definition would actually specify an
implementation.   
    
     The distinction between an interface specification and an
implementation is important because the former provides the basis
for interoperability, while the latter provides the basis for
competition.
   
     An interface specification is necessary to design
interoperable components.  For example, the interface specification
for the electric outlets used in the U.S. is widely known, and
enables every manufacturer of electrical products to design a cord
and plug for their products which will connect with every outlet
in the U.S. (Note, however, that the lack of an international
standard for electrical outlets precludes the same interoperability
from country to country.) 
  
     Another common example of a standard interface is the
connection jack used on stereo components.  Not too many years ago,
a stereo was a large, integrated unit, incapable of being modified
by its owner to incorporate new technologies.  Today, however, it
is a simple matter for most owners to add a CD player, a new tape
deck, or even a surround-sound amplifier to produce a home
entertainment center _ all because of the use of a standard
interface. 
  
     Although there is widespread agreement that the interfaces to
the NII should utilize this same concept of standard
interface-based interoperability, there is disagreement over the
issues of ownership and control.  Should a single company be
allowed to own or control the specification for a key interface to
the NII? 
  
     Universal access to the NII is important to both consumers and
industry. 
  
     The NII will make a wide variety of services available to the
consumer, including educational tools, lifetime training,
interactive video, and other services.  Many of these services may
prove to be as integral to daily life as the telephone and U.S.
mail are today.  Just as the government assures universal access
to these services, so must it commit to making the NII available
to all by guaranteeing success to basic services at an affordable
price. 
  
     Universal access is important to industry, too.  The
development of the NII is dependent upon the investment of large
sums of money and human capital _ in the form of innovation _ by
many firms, in many industries.  Their economic participation is,
in turn, dependent upon the minimization of any structural entry
barriers that would otherwise tend to limit competition.  For
example, for multiple companies to successfully offer each of the
key elements of the NII, their products and services must be widely
interoperable _ like stereo components. To achieve this end, the
components of the digital superhighway must utilize standard
interfaces whose specifications are freely available _ i.e., not
under monopoly control. 
  
     Monopoly, or single-point control of interfaces, would
restrict or eliminate access by potential alternative suppliers to
the specifications necessary to create and produce interoperable
components.  Similarly, it would limit the ability of potential
players to add new interfaces and services.  This would clearly
limit consumers' choices.  Without the pressure of such competitive
products or services, the pace of innovation and the intensity of
price competition would be reduced.  This lack of competition would
not only be detrimental to consumers, but also to America's
competitive strength in the global economy.  Some potential
barriers to competition based on proprietary control of interface
specifications are summarized in Table 1. 
  
     Each of these potential barriers to competition exerts its
influence by restricting access to the information necessary to
produce interoperable products or services.  Monopoly control of
interfaces might make specifications unavailable to third parties,
or it might allow access to only a select group of suppliers,
thereby limiting competition.  A similar anti-competitive impact
would occur if interface specifications were only available for
excessive license fees by effectively prohibiting new entrants. 

     Incomplete or untimely disclosure of interface specifications
might also make true interoperability difficult, and stymie new,
smaller entrants. 
  
     Consumers will demand choices when they connect to the NII:
choice of content, choice of providers, and choice of the devices
they use to access the digital superhighway.  Why?  Because their
needs and desires differ.  Just as Henry Ford discovered that not
every driver wants a black car, not every NII consumer will choose
to access the same services from the same company, using the same
set-top box.
   
     Proprietary control of the key NII interfaces would limit
consumers' choices.  For example, if the interface to the network
in your home _ an NII off-ramp _ was proprietary, it would be
possible for the transmission company provider to require that you
use only their set-top box.  Once locked into their system, you
have only two choices:  pay the price of the service, or forgo the
service. Similarly, at the origin end of the network, the
transmission company might limit consumer choice, by blocking
services that other want to provide to the consumer.  This would
be tantamount to blocking the on- ramps to the interstate highway.

     Sun believes that the interface specifications which become
standards in the data superhighway must be free of single-point
control and  proprietary barriers.  Although implementations _ the
actual products and services _ can and should be proprietary and
built by private industry, the interface specifications must be
barrier-free.  These interface specifications must be free from the
barriers like those shown in Table 1, which limit access or choice
and restrain competition and innovation. 
  
     The impact of the NII, like the interstate highway system, the
telephone network, and NTSC broadcast television, will be immense.
That is why it is fundamentally different from other industries and
why the Government alone has a responsibility, and the ability, to
guarantee universal access and choice, by mandating barrier-free
interfaces.  To do  this the Government should take two actions: 
 
     1.  Designate critical NII interfaces as barrier-free.  Sun
recommends that the FCC establish a broad-based committee made up
of representatives  from consumer groups, government, industry, and
academia, to identify the critical interfaces which must remain
barrier-free; and 
  
     2.  Set the policy _ legislatively define what constitutes
barrier-free, along the lines illustrated in Table 2. 
  
     These criteria are meant to apply to critical NII interfaces,
not implementations.  Sun has always, and will always, support
appropriate and stringent intellectual property protections for
implementations. We, like other companies, have a serious stake in
protecting the hundreds of dollars we invest every year in the
research and development that produces intellectual property. 
  
     When setting policies for creating barrier-free interfaces,
it is crucial that the Government not select specific
implementations posing as standards _ that would freeze innovation
and greatly limit all the benefits of competition.  The
Government's role in the information superhighway should be to set
the rules, not pick the winners.  Let the marketplace _ consumers
and producers _ do that. 
        
     The forerunner to the NII, the Internet, is an excellent
barrier- free model for the information superhighway.  The rules
of the Internet prohibit the selection of an interface as a
standard which has any elements which remain under the proprietary 
control of a vendor.  These same practices should be incorporated
in the policy setting which establishes the NII. 
  
     Barrier-free interface specifications will allow multiple
vendors to create competing, yet compatible implementations. 
Benefits from this competition include:  lower costs and greater
choices for consumers, increased opportunities for companies _ both
large and small, a reduction in barriers to the formation of new
companies, and resulting economic and job growth. 
  
     For some industry executives, a barrier-free business
philosophy seems counter-intuitive.  Yet, many companies and entire
industries have prospered in business environments using
barrier-free interfaces. Common examples exist throughout everyday
life. 
  
     _ Camera and film makers share the interface specification for
film. 
  
     _ Tire and auto makers meet the same interface specifications
for wheels.  Consumers know they can buy different brands _
proprietary implementations _ on both sides of the interface.   
     _ Makers of basketballs and basketball rims are secure in
their knowledge that one will fit the other. 
  
     _ The specification for motor oil, SAE10W-40, is not
controlled by a single oil company. 
  
     _ And the TCP/TP computer networking protocol used by in most
large government computer networks. 
  
     In each case, the companies in these industries compete on the
basis of their implementations, not the interface specifications.
Companies in industries from automobiles to computers, photography
to VCRs, and tires to electrical appliances, have benefited
enormously from the vastly enlargearkets made possible by
widespread use of barrier-free interfaces. 
  
     Equally important, the customers of technologies based on
barrier-free interfaces have won, because they have benefitted from
widely expanded choices, at competitive prices, in industries
aggressively pursuing innovation. 
  
     The ultimate success of the NII depends on the contributions,
the experimentation, and the entrepreneurial efforts of many
service providers.  Their participation requires the freedom of
access to the NII as a major new medium of commerce, that only
barrier-free interface specification can make possible. 
  
     The technologies which make the NII possible hold the
potential for new, billion dollar industries in the U.S.  They will
present massive new business and job opportunities.  They can, and
will, increase our nation's lead in the information, software
services, and entertainment sectors of the global economy, and
thereby fuel exports of high value goods and services.  A timely
government decision to specify the use of barrier-free interfaces
in the NII would help to ensure that the NII achieves its
potential. 
  
     Thank you. 
  

 


From mech  Mon Mar 14 19:36:48 1994
Received: from localhost (mech@localhost) by eff.org (8.6.4/8.6.4) id TAA29123 for mech; Mon, 14 Mar 1994 19:36:46 -0500
Date: Mon, 14 Mar 1994 19:36:46 -0500
From: Stanton McCandlish <mech>
Message-Id: <199403150036.TAA29123@eff.org>
To: mech
Subject: Al DeVaney - Association of Independent Television Stations Inc.
Status: RO


 			TESTIMONY OF AL DEVANEY

      ASSOCIATION OF INDEPENDENT TELEVISION STATIONS, INC. 
 
     COMPETITIVE ENVIRONMENT FOR MULTI-MEDIA DISTRIBUTION SYSTEMS 
 
          THE U.S. HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON  
 
                    TELECOMMUNICATIONS AND FINANCE 
  
                     WEDNESDAY, FEBRUARY 2, 1994 
  
     MR. AL DEVANEY:  Good morning Mr. Chairman and members of the
subcommittee.  My name is Al DeVaney and I am senior vice president
and general manager of WPWR-TV, channel 50 in Chicago.  I am also
chairman of the board of the Association of Independent Television
Stations, Inc., and appear before you today on behalf of
Independent television stations across the country. 
  
     There is no doubt that the Administration and the Congress are
committed to the creation of a national "information superhighway."
In general, INTV applauds these efforts.  However, over the past
decade our member stations, along with the American consumer, have
been the victims of a wire-based monopoly transmission system.  We
do not want to see this situation replicated under the guise of the
"information superhighway."  Our fundamental objective, in this
debate, is to promote and ensure a truly competitive environment
for all multi-media distribution systems. 
  
     For this reason, Independent television stations and broadcast
television stations overall have been frustrated by the decision
not to include over-the-air television broadcasters as part of the
information infrastructure debate.  Mr. Chairman, hopefully these
hearings will mark the beginning of television broadcasters' active
participation in the process.  We thank you for the opportunity to
be heard. 
  
     To date, there has been an implicit assumption in the
"information highway" debate that all video product, news sports
and entertainment, will be delivered to our homes and offices by
wire- based delivery services.  Policy makers have assumed that
broadcasters sole role in this highway will be to provide
programming for this highway.  We cannot help but feel that there
is a concerted effort to push all video delivery onto a wire. 
  
     We believe this approach is a mistake.  Television
broadcasting, as a 'transmission' system, should be considered a
key component of the "information highway." 
  
     Delivering video programming by wire will not be free.  If
cable television has taught us anything, it is that consumers will
pay to access wire-delivered program services.  Video programmers
will be charged an access fee to travel the road and consumers will
be paying to receive these message.  In this regard, the analogy
to the free interstate highway is inaccurate.  Rather, what will
be created is a national information toll road.  If television
broadcasters are to become simply another programmer on the toll
road, the American consumers must adjust to the simple fact that
they will have no option but to pay for access to all basic news,
sports and entertainment programs which they now receive
over-the-air for free. 
  
     While supporters of the "information highway" stress the idea
of universal service, and avoiding a society of "information haves
and have nots," they have failed to address the issue of how much
it will cost consumers to receive basic information.  As a society,
are we prepared to confront the situation where the only means of
accessing basic information is through a pay medium?  And the only
way millions of people can access this pay medium will be through
a communications version of food stamps. 
  
     Today we have a wire-based delivery system _ cable television
_ that passes about 90 percent of American households. 
Nevertheless, approximately 35 to 40 percent of the population
still relies exclusively on free over-the-air television for access
to basic news, sports and entertainment programs.  What will happen
to these people in an environment where all programs are delivered
by wire with no free, over-the-air option?  Policy makers have
always assumed that free over-the-air television will retain its
present posture.  Whether this remains true depends in large
measure on the steps taken in the next few months. 
  
     Right now the United States has an off-air video delivery
system that reaches 99 percent of American households.  It provides
basic news, sports and entertainment to the American public for
free.  All Americans, rich and poor, urban and rural, can access
this system simply by purchasing a television set. 
  
     Television stations have the facilities and transport
mechanisms to deliver a variety of video and non-video information
_ over-the- air _ to all America.  Broadcasters have spent billions
in physical plant ensuring the provision of interference-free
service.  Our highway is already up and running.  Consumers do not
have to pay the cost of laying new broadband wires or tearing up
streets across the United States. 
  
     Off-air television broadcasters are poised to compete with the
wire-based information toll road.  We have the ability to offer
another "lane" on the information highway.  Moreover, broadcasting
completely avoids the potential of cross-subsidization.  You can
be assured that the highway will not be built on the backs of basic
telephone ratepayers or cable subscribers. 
  
     The key to this over-the-air express lane is digital 
transmission.  For the past five years the broadcasting industry
has been developing a new digital transmission system in order to
create High Definition Television (HDTV).  Proponents of the
various HDTV systems have formed a Grand Alliance which will lead
to the creation of a standardized digital broadcast system.  The
FCC plans to allocate spectrum for this system sometime in 1995.

  
     The most important aspect of this new transmission system is
the ability to switch from current television distribution - which
is analog - to a digital system.  Digital transmission allows a
broadcaster to compress its signal, making room for a variety of
video and data services, not just HDTV. 
  
     Each television broadcaster is being asked to spend millions
of dollars to convert the current transmission system into a
digital system.  Once accomplished, we will be able to provide
service to all Americans faster and cheaper than more expensive
wire-based systems. More importantly, we will be able to retain a
basic channel of news, information, sports and entertainment
programming that is available to all Americans for free, shall also
offering many enhanced services.   
     The key question before the subcommittee is whether it will
enact policies that encourage a competitive _ wireless _
information highway.  Unfortunately, the debate has been confined
to shifting all video programming onto a wire-based toll road. 
INTV does not believe the debate should be so limited. 
  
     The Congress cannot assume that free off-air television
broadcasting will remain intact as the wire-based information
highway is being built.  Unless corrective steps are taken in this
legislation, broadcasting, as we now know it, may cease to exist. 
 
Millions of Americans living in areas that are not wired _ or those
unable to afford pay television _ will be stranded. 
  
     At the most fundamental level free off-air television provides
an important information safety net.  It also offers a tremendous
competitive alternative to wire-based delivery systems.  Such
incentives to remain in broadcasting and continue to provide free,
universal, ubiquitous video service must be provided.  If
broadcasters ultimately are treated like any other program source
with supposedly non-discriminatory access to the wire-based
"information highway," will the remaining economic incentives to
maintain this over-the-air transmission capability be sufficient? 
Would stations find it more sensible to abandon their off-air
facilities and provide their programming and services strictly on
a pay basis like other programmers?  Congress must not take
continued free broadcast service for granted.  If it wants free
universal service, it must assure a regulatory environment which
supports the economic soundness of broadcast television.  If
broadcasting is to retain its competitive posture, this
subcommittee should consider several important elements as it moves
forward with this legislation. 
  
     For the past decade, INTV has fought against discriminatory
behavior by monopolist cable operators.  Denying cable carriage and
providing local television stations with disadvantageous channel
positioning was merely an example of cable using its network
architecture to discriminate against its off-air broadcast
competitors.  After years of conflict, Congress solved this problem
with the must-carry and retransmission provisions of the 1992 Cable
Act.  The cable industry has fought this every step of the way.  
  
     The telephone companies have now tipped their hand by arguing
that must-carry is unconstitutional before the Supreme Court.  From
our perspective this is merely a sign of things to come.  The
anticompetitive ingredients are there.  The telephone companies,
through separate video subsidiaries and ownership interests in
programming, will be permitted to have an interest in the content
that travels over their own wires.  They have a strong incentive
to make sure subscribers watch this programming as opposed to
unaffiliated programmers like local television broadcasters. 
Presumable, their program subsidiaries will attempt to sell local
advertising.  INTV has witnesses first hand the anticompetitive
problems when the owner of the wire has an economic interest in
some of the programming carried over that wire. 
  
     Access is the core issue.  History demonstrates that once a
consumer subscribes to a wire-based service, he usually removes his
ability to access television signals over the air.  Indeed, in
spite of an FCC consumer education program, 94 percent of cable
subscribers do not retain the ability to access signals off-air. 
As a result, broadcasters that do not have equivalent access to the
new cable/telco highway may find themselves at a significant
competitive disadvantage. As we found with cable, lack of access
will adversely affect a television station's revenue stream,
hindering its ability to provide service to those not connected to
the wire.  The information "have nots" suffer the most. 
  
     To its credit, H.R. 3636 attempts to apply the access
provisions of the 1992 Cable Act, i.e., must-carry, channel
positioning and retransmission consent, to the new video platforms
that will be established by the new telco/cable entities.  However,
these provisions were designed to address discrimination in the
context of existing cable technology and architecture.  They may
be completely inadequate as applied to the new telephone video
program architecture. 
  
     Unfortunately, nobody knows what the new wire-based network
architecture will actually look like.  How will the program
schedules for competing services be listed?  For example, how will
the basic platform appear on consumers' screens?  Will the
offerings of the telephone companies' program subsidiary appear
first?  Will the consumer have to scroll through numerous screens
to access their local television broadcasters?  As we learned with
channel repositioning on cable systems, local television
broadcasters may find themselves in video Siberia _ several
"clicks" from oblivion. 
  
     The legislation does give the FCC the authority to establish
rules that prevent a telephone company from discriminating in favor
of its own video programming affiliate with respect to rates, terms
and conditions for access to the video platform.  Nevertheless,
INTV believes strongly that additional non-discriminatory access
provisions are necessary to prevent potential anticompetitive
abuses.  Because we do not yet know the exact mechanisms that could
be employed to discriminate, the FCC should be directed to enact
rules to prevent new cable/telco entities from using their
architecture and/or information menus from placing local broadcast
stations at a competitive disadvantage.  Complaints filed by local
television stations should be handled on an expedited basis.  The
FCC should have the ability to impose significant fines and grant
injunctive relief.  In addition, the legislation should expressly
state that a violation of these rules or any form of discrimination
would constitute a per se violation of law, giving rise to a
private cause of action by aggrieved parties for violations. 
Statutory penalties in the form of treble damages should be made
available to parties victimized by such anticompetitive conduct.
  
     On this fact, the legislation attempts to apply the must-carry
provisions of the 1992 Cable Act to the new video platforms.
Consistent with the must-carry concept, local off-air television
stations should have the ability to obtain free access to the video
platform.  At the very least, charges for access by local
television stations should be at a significantly reduced rate. 
  
     Unlike other program services, local broadcasters are subject
to unique public interest responsibilities.  Only local
broadcasters have a regulatory responsibility to meet the interests
and needs of their local communities.  Local television
broadcasters are subject to the political equal time rules under
Section 315 of the Communications Act.  We must provide access to
federal candidates under Section 312. In addition, the FCC is
considering new children's program requirements for television
stations and may reinstate rules limiting the amount of
commercials.  New, wire-based programming services offered on the
video platform probably will not be subject to these public
interest obligations. 
  
     Second, some have expressed concern over the prices that will
be charged to consumers under the new regime.  Requiring access
charges for basic broadcast television service will simply drive
up the cost of these services to consumers.  If local television
broadcasters have to pay to access the highway, these costs will
be passed on to consumers.  Such a result is inconsistent with the
concept of a universal basic television service. 
  
     Third, the concept that all programmers will be granted access
on the same rates, terms and conditions does not necessarily equate
to equal access.  Most local television stations do not have vast
libraries of programs.  At best they provide enough programming to
fill each broadcast day.  Compare this to the program services
envisioned by the new cable/telco giants.  These services will
offer a vast array of programs, voice and data services.  However,
if the access charges for all program services are the same,
broadcasters will have to pay more on a per program basis.  The
telephone companies' video programmers will be able to spread the
access costs across a vast array of programs and services.  Local
television broadcast stations will not have this luxury.  In the
end consumers will have to pay more for broadcast programming than
for competing services. 
  
     Finally, local Independent broadcasters have experienced
problems with having to pay cable operators for access to the wire. 
Prior to the 1992 Cable Act, many stations were required to pay in
order to get carried.  In effect, the monopoly pipeline charged for
access and then used the revenue to bid programming away from local
over-the-air television stations.  This placed free over-the-air
television at a considerable disadvantage.  We should not replicate
this mistake when constructing the "information highway." 
  
     The creation of large vertically integrated cable/telco
combinations will radically alter the means of program distribution
across this country.  At the present time, local television
broadcasters are able to secure exclusive rights to programs in
their local markets.  However, what happens when a fully integrated
wire- line network makes it possible to access television stations
from distant markets?  For example, could a subscriber in
Washington, D.C. access television stations located in New York
City that broadcast the same programs as the Washington station? 
The New York stations have purchased and secured the exclusive
rights to programs for the New York City market.  The Washington
stations have likewise acquired the exclusive program rights for
their local market. 
  
     The ability to access distant television stations through the
"information highway" could create havoc with the program
distribution systems that are currently in place.  Local off-air
television stations must be able to protect the exclusive rights
to product in their market.  Absent such protection, local
television stations have little or no incentive to invest in top
quality programming.
   
     A similar problem confronted local stations when cable systems
imported distant out-of-market television stations.  The FCC
resolved this problem by reinstating the syndicated exclusivity and
network non-duplication rules.  These rules give a local station
the ability to force a wire-based delivery service to "delete"
duplicate programs that appear on the cable system due to the
carriage of an out-of- market television station.  INTV believes
that similar rules should be made applicable to both the basic
video platform and any programming services offered on the new
"information highway." 
  
     In a similar vein, we are also concerned that the telephone
companies, without our permission, may offer services that permit
the time shifting of our program schedules.  Each television
station spends millions of dollars developing a program schedule. 
The television station, not the telephone company, should control
the scheduling of our programs. 
  
     The entire cable/telco debate has been premised on one
fundamental fact _ competition is preferable to monopoly.  There
was a sincere belief that allowing the telephone companies to enter
the video business would provide competition to the existing cable
industry.  INTV believes that the only way to ensure competition
and to reduce prices to the American consumer is to create a system
where two or more separately owned wire-line delivery systems
compete in the same geographic area. 
  
     Unfortunately, it now appears that this laudable goal may not
be achieved.  Some telephone company executives are already stating
that you do not need two separate wire-based delivery systems. 
According to the sirens song, you only need one wire with
"safeguards" that promote competition among program suppliers.  Of
course, the telephone company will be a major program supplier over
the single wire and, according to the telephone companies,
traditional access safeguards for local television stations such
as Must-carry should not apply because they allegedly infringe on
a telephone company's First Amendment rights. 
  
     What we are witnessing today is not the creation of a system
where there will be two or more independently owned wire-based
delivery systems.  The rush is on for telephone companies to simply
buy out existing cable systems in the areas where they provide
local telephone service.  We are creating a system of a few 
telecommunications giants which will perpetuate the cable
industry's existing monopoly power. 
  
     Electronic Media recently reported on John Malone's speech
before the Center for Strategic and International Studies.  Mr.
Malone is one of the most visionary executives in the
telecommunications business. Nevertheless, his predictions are
somewhat frightening. 
  
     John Malone, president and chief executive officer of TCI,
last week predicted that two or three companies will eventually
dominate the delivery of telecommunications services over
information superhighways worldwide... 
  
     Mr. Malone also said the sense that only the biggest players
would be able to take full advantage of the new telecommunication
environment is what's spurring the ongoing wave of industry mergers
and joint ventures. 
  
     The article goes on stating that Mr. Malone ...[M]aintained
that the critical issue for programmers and others will be
inclusion in the "two or three branded communications bundles" the
largest players provide, not the simple access to superhighway
facilities that many federal regulators currently appear to have
in mind. 
  
 
     "The big bubbles get bigger and the little bubbles
disappear"... and 
  
     "The guy who is out there selling his own service is going to
have a very hard time"... 
  
     INTV simply does not believe it is in the public interest to
permit the creation of two or three large, vertically and
horizontally integrated cable/telco companies that will dominate
the "information highway."  Our experience with the cable industry
has taught us that control over the pipeline to the home permits
a company to leverage its power to control an ever increasing
segment of the video program industry. 
  
     One sure way to avoid Mr. Malone's prediction is to create a
regulatory climate that fosters two or more wire-based delivery
systems in each local market.  Such a policy takes away the key to
exercising anticompetitive power. 
  
     To this end, H.R. 3636 attempts to prevent telephone companies
from simply buying out cable systems in their local telephone
service area.  Unfortunately, the bill is riddled with exceptions
that will ultimately create a single video leviathan in each
market.  The exceptions swallow the rule. 
  
     The bill permits a local telephone company to purchase or
joint venture with cable systems within its own telephone service
areas so long as such cable systems, in aggregate, serve less than
10 percent of the total number of households in the company's
telephone service area. 
  
     This creates an enormous loophole in the legislation's
anti-buy out provisions.  For example, there are approximately 12.7
million households in Bell Atlantic's telephone service area.  This
means that a telephone company could acquire cable systems serving
approximately 1.3 million homes.  This is roughly equivalent to all
the television households in the Washington, D.C. market (which
includes the entire metro area).  Alternatively, Bell Atlantic may
be able to acquire almost all the cable systems in Virginia or all
the systems in the District of Columbia, Maryland or Delaware. 
  
     There are approximately 11.7 million households in the NYNEX
service area.  Under the legislation, NYNEX could acquire a
majority of the cable systems in Massachusetts or all of the cable
systems in Connecticut or Main or Rhode Island or New Hampshire or
Vermont. Southwestern Bell reaches approximately 11.4 million
households. Under the legislation, Southwestern Bell could purchase
all the cable systems in the Houston market. 
  
     The FCC may permit a telephone company to by out cable systems
within its telephone service area upon a showing of undue economic
distress or if the incumbent cable operator would not be
economically viable. 
  
     This waiver requirement would permit almost every telephone
company to buy out all existing independent cable operators located
within the telephone company's telephone service area.  Indeed, it
is consistent with Mr. Malone's observations that only a few large
telecommunications giants will control the "information highway."
Faced with competition from new cable/telco ventures, the remaining
independent cable operators have a way out _ sell to the local
telephone company.  This language is ripe for abuse.  A liberal
waiver policy will simply nullify the rule. 
  
     INTV fails to understand how such broad based exemptions
foster competition or even promote the development of the
"information highway."  On the contrary, permitting telephone
companies to simply buy out existing cable systems provides
disincentives to develop new broadband facilities.  One can expect
a telephone company to simply depreciate existing cable plant and
facilities once they are purchased.  There is little or no
competitive incentive to build new broadband facilities.  These
exemptions simply permit the telephone companies to perpetuate
cable's existing monopoly status. 
  
     INTV believes that telephone companies should not be permitted
to simply acquire existing cable systems that are located within
the company's telephone service area, period.  Entry into the video
business should be conditioned on building new wire-based
facilities. Such a policy would promote facilities-based
competition.  Consumers would benefit from lower prices and
upgraded facilities.  Program suppliers would benefit because they
would not depend on a single gatekeeper to access customers.  The
exceptions contained in the statute should be eliminated. 
  
     Consistent with the goal of promoting competition among
distribution services, Congress should enact policies that maximize
competition between off-air and wire-delivered services.  Indeed,
Congress and the FCC have embraced competition between off-air
cellular telephone services and wire-line services.  The FCC's
recent decisions regarding personal communications services (PCS)
provide further support for the concept that off-air services can
and should compete with wire-based facilities. 
  
     There is every reason to apply these same pro-competitive
principles to the video industry.  American consumers would surely
benefit from additional competition.  In fact, given the recent
round of mergers between telephone companies and existing cable
systems, competition from independently owned off-air broadcast
stations may be the only real competition in many local markets.

  
     Unfortunately, existing rules governing the broadcast industry
make it difficult or impossible for broadcasters to compete in the
new telecommunications marketplace.  INTV believes Congress must
address two key issues. 
  
     Broadcast multiple ownership rules should be eliminated.  In
today's environment it makes little sense to subject the broadcast
industry to the existing national multiple ownership rules or the
local market ownership restriction.  The TCI/Bell Atlantic merger
is the largest in the history of telecommunications.  The resources
this combination will bring to the marketplace will be
unprecedented.
   
     Given these facts, off-air television broadcasters, which will
be forced to compete with these telecommunications giants, must be
able to harness the economic efficiencies that flow from group
ownership. There is no justification for limiting broadcast
ownership to 12 stations and 25 percent of the national audience. 
Eliminating or raising the national ownership limits will promote
competition and diversity.  It will create broadcast entities that
have the economic clout to compete with the cable/telco giants. 
Moreover, by increasing the national audience reach, it becomes
more economical for a television broadcast group to engage in new
program production.
   
     Equally important is the elimination of the television duopoly
rule.  This rule prevents an entity from owning more than one
television station in any local market.  The rule makes no sense
when compared with the regulatory regime enacted for cable
television. 
  
     Even though cable systems are monopolies in their local
franchise areas, the FCC has declined to enact rules which limit
cable ownership in local markets.  For example, a single cable
operator is free to acquire all the cable systems in the
Washington, D.C. metro area.  In other words, a single cable
operator can own all the cable systems (with each system providing
an average of 36 channels of video programming) but a television
broadcast station is limited to one advertiser supported video
channel in each market.  This disparate regulatory treatment makes
little or no economic sense and will severely weaken off-air
television broadcasting.  If broadcasters are to compete with
wire-based services, they must be free to harvest the efficiencies
from local market combinations. 
  
     The second issue is spectrum flexibility.  For nearly a half
century television broadcasters have been transmitting video
signals to all America.  However, in order to compete with new
broadband services, broadcasters will have to radically alter the
way they do business. 
  
     The wire-based "information highway" will offer a variety of
services including video entertainment, interactive communications,
data transmission, home banking and traditional telephone service. 
It becomes increasingly difficult for an off-air transmission
service to compete with such a vast array of services if it is
limited to a single video channel. 
  
     The advent of digital transmission will permit broadcasters
to compress their signals.  It is entirely possible that a station
may be able to transmit four or more video channels or to provide
a combination of video channels with voice and/or data transport.
Broadcasters need the flexibility to use the spectrum to meet
market demands. 
  
     Admittedly this is a radical change from the traditional role
occupied by broadcast television stations.  However, the
competitive imperatives of the new telecommunications marketplace
require us to adapt.  Without this flexibility, the free
over-the-air television service that now exists may not survive
into the next century.
   
     Importantly, we are not asking for the flexibility in order
to cease free, over-the-air television broadcasting.  On the
contrary, free, over-the-air television will remain the core of our
business. We will continue to provide at least one channel of free
television. What we request is the flexibility to provide other
services on the spectrum we now occupy.  Revenues derived from
these ancillary non- broadcast services will help ensure that the
core business _ free off-air television _ remains viable.  In
addition, the flexibility will give the American consumer a
competitive alternative to wire- based delivery systems. 
  
     In conclusion, off-air television broadcasting facts many
challenges in the very near future.  We are very concerned that the
"information highway" will become nothing more than the
perpetuation of monopoly power by a wire-based delivery system. 
Accordingly, INTV requests that the subcommittee strengthen the
access requirement of the bill as they relate to local off-air
television stations.  Also, the exemptions in the bill permitting
the telephone companies to buy out existing cable systems should
be eliminated.  Finally, the local television broadcaster must be
given the relief from existing ownership rules and spectrum
flexibility to provide a competitive alternative to the wire-based
telecommunications giants that will occupy the playing field in the
very near future. 
  
     Congress should not take the existing free off-air television
service for granted.  Without careful attention t the needs of
television broadcasters,m our universal, free broadcast service
will decline.  Without free television, American consumers will
have no choice but to travel on the new information toll road. 
  

 


From mech  Mon Mar 14 19:37:43 1994
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Date: Mon, 14 Mar 1994 19:37:42 -0500
From: Stanton McCandlish <mech>
Message-Id: <199403150037.TAA29150@eff.org>
To: mech
Subject: Decker Anstrom - National Cable Television Association
Status: RO


 
  
                NATIONAL CABLE TELEVISION ASSOCIATION 
  
   REGARDING H.R. 3636, THE NATIONAL COMMUNICATIONS COMPETITION AND 
               INFORMATION INFRASTRUCTURE ACT OF 1993 
  
BEFORE THE SUBCOMMITTEE ON TELECOMMUNICATIONS AND FINANCE COMMITTEE
                               ON
                      ENERGY AND COMMERCE 
  
          US HOUSE OF REPRESENTATIVES, WASHINGTON, DC 
  
                  WEDNESDAY, FEBRUARY 2, 1994 
  
     Mr. Chairman, members of the subcommittee, my name is Decker
Anstrom and I am President and CEO of the National Cable Television
Association.  Thank you for inviting me to testify before you today
on behalf of the NCTA, which represents more that 60 cable program
networks and most of the cable operators serving our nation's 62
million cable subscribers.  I welcome this opportunity to comment
on H.R. 3636, the "National Communications Competition and
Information Infrastructure Act" authored by the chairman, ranking
member, and several other members of this committee. 
  
     NCTA supports your efforts and those of the Administration to
promote the construction of an advanced telecommunications
infrastructure in the United States.  The cable industry agrees
with the vision of a competitive information services marketplace
based on (1) private investment, technology, and initiative, and
(2) the concept of a "network of networks," not just a single wire.
Furthermore, we agree with H.R. 3636's fundamental premise that
local telephone service should be opened to competition.  We also
acknowledge that local telephone companies should be allowed to
enter the television business - as long as such telco entry does
not undermine fair competition in the video market.  The cable
industry actively supports legislation that will build a
competitive national telecommunications infrastructure, and we are
committed to working with you to redefine and pass H.R. 3636. 
  
     The creation of a competitive local telecommunications
marketplace requires the establishment of an appropriate
legislative and regulatory framework.  That framework must
encourage new participants to enter the telephone and
telecommunications market by removing barriers to entry and
limiting regulation of the new entrants, given their lack of market
power.  One need only look at the history of the long distance
industry to see the benefits that come from carefully nurtured
competition. 
  
     Cable television companies _ with their broadband facilities
now available to more than 95 percent of US homes - are likely to
be the primary competitors to local exchange companies.  For that
competition to develop, however, cable must be able to attract the
capital necessary to expand its service offerings.  Lawmakers
should therefore adopt policies that foster facilities-based
competition, permit the capital formation necessary to build
advanced communications infrastructures, and exercise caution in
removing the restrictions on local phone companies. 
  
     Recent advances in communications technology are causing a
"convergence" of services that traditionally were very distinct
from one another.  As this convergence occurs in computer,
television, and telephone technologies, it raises new questions
about the practical application of many laws and restrictions that
govern providers of communications services.  Chief among these
issues are the validity of the local telephone industry's monopoly
over the local loop and the need to bar local telephone companies
from providing cable television services. 
  
     At the same time that these questions are opened for debate,
there is new enthusiasm for policies that will foster the
development of an advanced telecommunications infrastructure in the
United States. The cable industry supports policies that will
promote multiple networks and multiple providers that compete to
provide Americans the most advanced and affordable communications
services possible.
   
     Leading policy makers in both the Congress and the Clinton
Administration have expressed their support for widespread
"facilities-based" competition in telecommunications - and this
principle is a central element of H.R. 3636.  Cable television
companies, which currently reach over 95 percent of the homes in
the United States, are the most likely to provide such
facilities-based competition to the local telephone companies for
advanced communications services. 
  
     Cable television companies can build on their existing
facilities to develop advanced telecommunications networks far more
efficiently and inexpensively than telephone companies can. 
Indeed, new enhancements will ultimately allow cable companies to
deliver 500 channels and virtually every type of communications
service conceivable.  However, cable companies must first raise
more than $20 billion during the next decade to build these
advanced facilities.
   
     The primary obstacle to a competitive telecommunications
marketplace is the monopoly that local telephone companies have
over local telephone service.  This monopoly requires that public
policy acknowledge two central issues:  The local telephone loop
should be opened to competition (currently, state and local
regulations help ensure that virtually all telephone calls travel
through the local telephone company's facilities), and that as
telephone companies are allowed to enter new lines of business,
precautions must be taken given their size, financial strength, and
ability to limit competition. 
  
     Although cable companies are prepared to compete with local
exchange carriers, the latter's financial strength and market
dominance must be recognized.  Local telephone companies control
more than 99 percent of all residential phone calls and generate
over $100 billion a year in revenues.  Cable companies must have
the opportunity to compete without being hampered by state and
local rules, and to obtain the necessary capital and invest it in
order to become true competitors in the local loop. 
  
     Today, almost all telephone calls are routed through the local
telephone company's "loop" _ the wires that connect customers to
the phone company's central office.  Local telephone companies
enjoy a monopoly on phone service that is often protected by a
myriad of state and local regulations which bar other providers
from competing to serve residential telephone users.  In fact, 47
states have statutory or regulatory barriers that limit cable entry
into local  telephone service.  Until recently, this
state-sanctioned monopoly made sense. After all, there was no
expectation that other communications providers would develop
alternative networks to compete with local phone companies.  Now,
however, that has changed.  New technology eventually will make
genuine competition possible for local telephone service,
especially from the cable television industry. 
  
     Cable television companies have constructed communications
networks that reach 95 percent of American homes, and those
networks carry up to 900 times as much information as the telephone
company's twisted pairs.  Furthermore, as cable companies continue
to install more fiber optic trunks over the next five years, their
capacity will double and system reliability will increase
dramatically.  Digital compression will ultimately bring the
capacity of cable networks to 500 channels or more and will enable
companies to deliver interactive voice, video and data services
over the same wire. 
  
     These developments will eventually allow cable companies to
provide virtually every type of communications service conceivable,
including voice communications.  As such, cable is in a position
to become a facilities-based competitor to the local telephone
monopoly. It is essential that lawmakers act to eliminate the
barriers that prevent cable and other potential communications
providers from introducing true competition to the local telephone
marketplace.
   
     Specifically, Federal regulators must act to preempt state and
local restrictions that preclude competition to the local loop. 
The telecommunications infrastructure is rapidly becoming a
seamless national network, and potential competitors must be able
to enter the marketplace on a national basis.  Communications
providers - and the investors that finance them - must have the
assurance that state and local barriers will not stand in the way
of competition.  If potential competitors to the local phone
companies are expected to fight regulatory barriers in each of the
fifty states, there is simply no possibility that competition will
emerge in this century, if at all.
   
     The size and strength of the nation's phone companies
vis-a-vis cable companies:  The nation's local telephone companies
have demonstrated their ability to dominate any market they enter. 
In 1986, 50 percent of the top 20 cellular telephone markets were
controlled by the seven Regional Bell Operating Companies (RBOCs)
and GTE.  In 1992, 75 percent had been captured by these companies. 
 
     In fact, the local phone companies possess the size and
financial strength to overwhelm the competition in any market they
enter.  For example, annual revenues for the RBOCs are larger than
those for the cable television, broadcasting, and motion picture
industries combined; the Bell Operating Companies have revenues
that exceed the GNP of several industrialized nations, including
Greece, Portugal, and Hungary; the value of the telephone company
stock has increased an average of 278 percent in the past eight
years; the phone companies' return on equity averages about 15
percent, while the top 1000 US corporations average less than 10
percent; and the 30 most profitable firms in the US include all
seven RBOCs, but no cable television companies. 
  
     The phone companies' financial strength is especially
pronounced in contrast to that of the cable companies.  For
example, the RBOCs have bond ratings that range from A+ to AAA,
while most major cable companies have ratings that range for B to
BBB.  Net income for Bell companies was 11.1 percent of revenue in
1990, compared to 0.3 percent for the cable industry. 
  
     Cable rate regulation also dealt a serious blow to the cable
industry's financial capacity.  Federally-mandated rate reductions
are estimated by the FCC to have reduced the industry's revenues
by at least $1 billion.  As a consequence, most cable companies
have be forced to renegotiate and restructure their loans. 
Furthermore, Paul Kagan conducted a study in January 1994 on the
impact of the new rate regulations on the cable industry's revenue,
cash flow, and its ability to invest in new programming and
technology.  According to the Kagan study, the "rate re-regulation
mandated by the Cable Act and implemented by the FCC, combined with
the subsequent rate freeze which has been extended into 1994, have
already precipitated more than an estimated $2 billion direct loss
of revenues and cash flow to system operators."  Kagan estimates
that this loss is equivalent to the industry's investment in
bringing new technological services to 7.3 million American homes
or about 10 percent of all cable homes.  Kagan further estimates
that the $2 billion in lost revenue "translates into the deferred
startup of 40 new program networks." 
  
     Before cable companies can be expected to compete against the
telephone companies, they must have the opportunity to work through
this regulatory transition; to reestablish their financial strength
and lines of credit; and to make efficient investments in new
technologies necessary to introduce competition in
telecommunications. Competition will not develop if telcos are
allowed into the video market immediately.  The need for an
"incubation" period has be recognized in the U.K., and in other
contexts in the U.S. 
    
     Local phone companies have clearly demonstrated their
eagerness to become providers of video services.  In fact, they
have exerted tremendous efforts over the past five years to change
current laws and regulations that prevent them from doing so. 
  
     The cable television industry and others have historically
opposed the telephone companies' efforts out of concern that they
could exercise their monopoly power to unfairly compete in the
video market.  But the cable industry does not contend that these
cross- ownership restrictions should be maintained forever. 
Indeed, the cable industry acknowledges that the question is no
longer "whether" the phone companies will someday be allowed to
provide video services; but rather, "when and under what
circumstances." 
  
     However, the government must take steps to ensure that when
phone companies do enter the video market, they will not be able
to exercise monopoly power so that a truly competitive video market
will be allowed to flourish.  The current restrictions on telephone
companies were established for very good reasons.  In fact, they
were created in response to clearly-identified abuses that occurred
over several decades and continue to this day.  Therefore, in
loosening these restrictions, lawmakers must proceed carefully to
ensure that those anticompetitive abuses are not permitted to
recur. 
  
     Specifically, the cable industry advocates two important
conditions on any phone company entry into the video business. 
First, their entry should come in stages _ when the market for
local phone service becomes "effectively competitive" or when seven
years have elapsed in the absence of such competition.  Second,
strict safeguards must be put in place to help prevent
anticompetitive behavior.
   
     During the transition period before telcos enter cable,
telephone companies will provide the basis for new competition in
video services.  Current "video dialtone" rules allow telephone
companies to build facilities capable of delivering video and
advanced communications services and lease channel capacity to
independent service providers.  The phone companies should continue
to have the ability to build and lease these facilities as staged
entry occurs.
   
     There is both a clear rationale and a historical precedent for
"staging" the phone companies entry into the video market.  
 
     Due to the local phone companies' size, strength, and
virtually limitless resources, their premature entry into the video
market would threaten competition in two areas:  First, competition
in the market for advanced telecommunications services would be
jeopardized because the telcos' most likely competitors - cable
television companies - would be unable to acquire the financing
necessary to compete in a capital-intensive race.  Second,
competition in the market for video services would be threatened
by inappropriate cross-subsidies between the telephone companies'
unregulated services and their monopoly service.  Consequently,
lawmakers must exercise great care in allowing local telephone
companies to enter new lines of business. 
  
     Deregulatory models from other markets, including the US
electronic publishing market and the British telecommunications
market, demonstrate the benefits of staged entry and gradual
deregulation. 
  
     The regulatory treatment of AT&T with respect to the
electronic publishing market provides an instructive example for
the introduction of competition to video services.  In reviewing
the AT&T Consent Decree in 1982, the US District Court determined
that AT&T should be barred from the electronic publishing market
for a period of seven years _ "the period necessary to establish
conditions conducive to free and fair competition". 
  
     Among other things, the court expressed concern that the
combination of AT&T's financial, technological, manufacturing, and
marketing resources would dwarf any efforts by its competitors to
provide electronic publishing, and so imposed the seven-year ban
on AT&T's entry into that market.  These are precisely the concerns
that would apply to the premature entry of the RBOCs into the video
market.
   
     Another useful regulatory model is found in the British
telecommunications market, where the government has sought to
introduce competition to communications services.  Like policy
makers in the US, British lawmakers believed that cable companies
offer the best hope for facilities-based competition.  However,
they were concerned that allowing telephone companies to
immediately enter the video market would damage the opportunity for
competition by other providers of communications services. 
  
     Consequently, in 1991, the British government concluded that
telephone companies would not be allowed to provide video services
until ten years had elapsed, while acknowledging the possibility
that the restriction might be eliminated after seven years.  (In
Japan, NTT, the monopoly provider of telephone service, is also
barred from providing cable television services.)  In the meantime,
the British have opened the market for local telephone service to
competition.
   
     In response, the market for advanced telecommunications
services is booming in the U.K.  According to a recent Business
Week report, "a rich mix of Baby Bell telephone companies, cable-TV
operators, media companies, long-distance carriers, and technology
boutiques are installing networks to carry video, voice, and data"
to residents and businesses in Britain.  Cable operators have
already invested about $2 billion in just three years, and plan to
spend another $10 billion on fiber optic networks and switches. 
As of October 1992, for example, Birmingham (England) Cable had
reached 35 percent penetration for state-of-the-art cable services
and 21 percent penetration for local telephone service.  Without
staged entry, these telecommunications providers could not have
attracted the capital that allowed them to introduce this vigorous
competition. 
  
     The British experience demonstrates that opening the local
loop to competition, while staging the telcos' entry into video
services, can result in vigorous competition for local telephone
service and widespread development of advanced communications
technologies.   
     An "effective competition" standard is the single most
important safeguard that lawmakers can enact, because it will
substantially reduce the telephone companies' ability to shift
unregulated costs to monopoly services.  In short, competition is
the best regulator. Cross-subsidy concerns reflect the fact that
phone companies have the incentive and the ability to misallocate
costs from competitive services to monopoly services, thereby
gaining an unfair advantage over competitors while overcharging
monopoly ratepayers.  Opening the monopoly to competition is the
surest way to address that concern.
   
     Other safeguards can also help ensure that phone companies
refrain from anti-competitive behavior and make such behavior
easier for regulators to detect.  For example, lawmakers should
require that phone companies deliver video services and develop any
programming through separate subsidiaries in order to allow
regulators to track transactions between regulated and unregulated
sides of the business. Lawmakers should also establish strict rules
on cost allocations and the treatment of intangible assets to
ensure that unregulated costs are not inappropriately apportioned
to regulated services.
   
     Recent events have shown that structural safeguards, such as
separate subsidiaries, are critical to deterring anticompetitive
conduct.  Cost allocation rules and other regulatory safeguards
alone are inadequate.  The FCC, for instance, permitted GTE to
continue to fund a cable operation in Cerritos, California - in
violation of the cable-telco restriction - for more that three
years, despite a Federal court of appeals decision holding that the
Commission had failed to justify an exception to the restriction
in that case.  Likewise, a recent GAO study (July 1991: 
RCED-91-195) shows that federal regulators can audit local
telephone companies only once every 18 years to ascertain their
compliance with regulatory safeguards.  These factors lend greater
urgency to the need for laws and regulations that will forestall
anticompetitive behavior. 
  
     Other requirements for a competitive telecommunications
marketplace, aside from preemption, staged entry, and safeguards
include national information infrastructure legislation and should
also included several other components, such as Reduced Regulatory
Requirements for Non-Dominant Service Providers.  In the interest
of promoting competition in the local loop, new entrants and
providers without market power should not be subject to the same
degree of regulation as monopoly providers.  The level of
regulation appropriate to dominant local telephone companies is
unnecessary for fledgling competitors and would impede the growth
of competition in the local loop by imposing a significant barrier
to entry. 
  
     The deregulation of long-distance telephone service provides
a relevant example for the regulatory treatment of new competitors
against an entrenched monopoly service provider.  In 1980,
regulators classified long-distance carriers as "dominant" or
"non-dominant" based on their market power.  Non-dominant carriers
were subject to streamlined regulations that would improve their
ability to compete against AT&T.  Tariff regulations for AT&T's
business services were streamlined in 1991, only after competitors
had gained a foothold in the long-distance market. 
  
     Similarly, Congress enacted legislation authorizing the FCC
to relieve providers of wireless services from the full range of
regulations applicable to landline carriers.  This kind of
regulatory flexibility - with "non-dominant" carriers subject to
less stringent regulation than carriers with market power - is
essential to the development of competition in the local
telecommunications marketplace.  A "one size fits all" regulatory
scheme will impose unnecessary burdens on new entrants and serve
only to deter the development of alternatives to the local telcos.
  
     Flexibility on Joint Ventures and Mergers:  Antitrust laws are
designed to prevent anticompetitive practices and to ensure that
dominant players do not disadvantage other competitors or
consumers. However, these laws do allow joint ventures or mergers
to occur when they do not create monopolies or lessen competition;
they also recognize that such transactions produce consumer
benefits which would not otherwise materialize. 
  
     These antitrust standards, rather than an outright ban on
mergers and joint ventures, should regulate the behavior of
telephone and cable companies in the provision of advanced
communications services. An outright ban, in fact, may actually
diminish the widespread availability of advanced communications
services to all Americans.  In areas where side-by-side
communications networks could not be expected to exist, cable and
telephone companies should have the opportunity to pool their
resources - in a regulated environment - to introduce advanced
communications services. 
  
     In rural areas, for example, cable and telephone companies
individually may not have the economic basis to build advanced
information infrastructures due to the higher cost of serving these
areas.  Likewise, smaller markets might not sustain two competing
providers of advanced communications services.  In these cases,
joint ventures or mergers might provide the only opportunity to
introduce advanced communications services to those areas. 
  
     Comparable Franchise Obligations:  Telephone companies that
enter the market for video services should have the same franchise
obligations as the cable companies against which they will compete.
For example, cable companies are typically required to obtain a
franchise, pay franchise fees of up to 5 percent of revenues, and
to provide public, governmental and educational access channels.
Extending these fees and service obligations to all video service
providers is essential in terms of both the public interest and
competitive fairness. 
  
     Interconnection Rights:  The cable industry supports
initiatives to promote interconnection by alternative providers of
voice services to the local telephone switch.  Interconnection is
essential to ensure that consumers have complete access to the
nation's telecommunications resources.  The facilities of dominant
common carriers should be open and accessible to the
facilities-based providers on reasonable and non-discriminatory
terms and conditions. 
  
     Preservation of Universal Service:  As competitors enter the
local telecommunications marketplace, they must begin to share in
the cost of ensuring that basic telephone service is available to
all Americans.  Regulators should determine how much of a
contribution to universal service is included in the rates charged
by local telephone companies for services subject to competition,
and devise an equitable means of apportioning that amount among all
providers of competitive local telecommunications services.  The
funds collected in this manner should be made available to any
provider of local telecommunications service that can provide
universal service most economically and efficiently. 
  
     The cable television industry recognizes the vital importance
of ensuring universal basic telephone service and is prepared, as
cable companies begin to offer telephone services, to pay a
proportionate share of any subsidies required to meet this goal.
  
     Consumers will benefit from a diverse, competitive 
telecommunications environment that features multiple networks and
multiple providers.  Multiple networks will minimize the cost of
the service to consumers by encouraging companies to provide
competitive rates and to offer the specialization that consumers
demand.
   
     Consumers will also benefit from the job creation and capital
investments that are sure to accompany a competitive approach to
developing the nation's infrastructure.  Telcos have long argued
that deregulation will produce economic benefits by, for instance,
giving them the "incentives" to develop their communications
networks.  The data show, however, that as they have diversified
into new lines of business, local telephone companies have actually
cut their employment levels by more than 15 percent while cable
companies have increased theirs by 58 percent. 
  
     All Americans will benefit from an infrastructure that makes
efficient use of the nation's existing communications networks. 
Many cable companies are already laying the foundation for a
national information superhighway; it is imperative that government
policies ensure that it can be used to its fullest potential. 
Modern cable systems represent an invaluable resource that the US
can use toward meeting its telecommunications objectives.  These
existing infrastructures must be part of the national
communications superhighway. 
  
     H.R. 3636 is commendable for both its vision and many of its
specific provisions.  Several sections of the bill are
straightforward and need only slight refinement to ensure full
implementation of the committee's goals.  For example, the cable
industry strongly supports the bill's preemption of state and local
regulatory barriers to competition.  As described earlier, this
preemption is essential to the development of a national
information infrastructure that offers consumers the fullest range
of choices among competing providers and services. 
  
     However, other sections require some revision - particularly
the terms for telco entry into television.  The cable industry
looks forward to working with Members, committee staff, and other
interested parties in the weeks ahead to strengthen the bill as it
moves forward to markup. 

  
     Repeal of the Cable-Telco Restriction 
  
     Outstanding issues include the need for threshold
certification. The bill requires only that a telephone company
providing cable service also establish a common carrier "video
platform" for use by unaffiliated programmers.  Thus, telcos could
enter the cable business before state-imposed barriers to local
competition were preempted and even if they were not in compliance
with the bill's infrastructure obligations. 

  
     The Need for Staged Entry 
  
     As described earlier, the size and strength of the nation's
phone companies, their demonstrated ability to dominate new
markets, the immediate financial constraints facing the cable
industry, and the lessons of other de-regulatory models all support
the notion of "staged entry" for telephone companies as they seek
to offer video services.  These factors demonstrate that phone
companies, if allowed to enter the video market immediately, would
endanger the likelihood of competition in the market for both the
video and advanced communications services.  Indeed, H.R. 3636
recognizes the need to ensure that dominant local exchange carriers
cannot impede competition before they are permitted to enter new
businesses by providing for a five-year transition period before
they are allowed to offer inter- state long-distance services. 
Because telcos today possess extraordinary market power, their
entry into video services must be staged in such a way that will
promote genuine competition.
   
     The cable industry proposes that the timing of the telephone
companies' entry into television be based on one of two tests,
whichever comes first. 
  
     Test NZ1 is effective competition.  The most effective means
for eliminating the treat of anticompetitive behavior is to
establish "effective competition" as a precondition for allowing
telephone companies to enter the video market.  In others words,
local phone companies should be found to face genuine competition
in the local loop before they are allowed to provide video
services. 
  
     An effective competition test to govern telco entry into cable
could be modeled on the definition of effective competition in the
1992 Cable Act or on the effective competition test contained in
Senator Inouye's S.2112 (the "Information Services Diversity Act
of 1991") from the 102nd Congress. 
  
     Under the 1992 Cable Act, effective competition is defined to
mean the availability of an alternative multichannel video
programming distributor or distributors reaching 50 percent of
households, and 15 percent of households obtaining service from
distributors other than the largest one. 
  
     In S. 2112, effective competition was deemed to exist if 50
percent of all business and residential customers had access to
alternatives to the local telco, and 10 percent of all customers
obtained service from those alternative providers. 
  
     In an effectively competitive local exchange marketplace,
where consumers have a choice of providers, a local telephone
company's ability to cross-subsidize its cable business by shifting
the costs of cable to telephone ratepayers would be significantly
reduced.  In such an environment, moreover, regulatory safeguards
stand a better chance of working.  Where telcos retain the
unfettered ability and incentive to act anti-competitively, as they
would if they were permitted to enter the cable business before
effective competition develops, the task of detecting and
preventing anticompetitive cost shifting would be practically
impossible.  Under those circumstances, accounting rules and other
behavioral safeguards have historically been unable to prevent such
conduct. 
  
     Test NZ2 is date-certain.  In the event that effective
competition fails to materialize, telcos should be allowed to enter
the video market several years after the enactment of legislation
to make the local telephone loop competitive.  The cable industry
proposes that period to be fixed at seven years.  At least three
factors supports a seven-year expiration period for the video
restriction on telcos.
   
     First is bank financing.  Cable companies and other potential
competitors must have the opportunity to raise the capital and
invest in efficient telecommunications infrastructures before the
telephone companies enter the video market and foreclose that
opportunity.  A seven-year window will allow cable companies to
work through the current transition period and assure lenders that
they can achieve earnings on new investments before telcos enter
the market.
   
     Second is the issue of depreciation schedules.  A seven-year
expiration date for the restriction on telcos will allow cable
companies to assume the expenses associated with new facilities
after having depreciated existing plant.  Studies have shown that
the useful life of most cable plant is about seven years. 
Consequently, most cable plant is depreciated over that period. 
  
     Third are the British Telecom and AT&T Electronic Publishing
Models.  As previously discussed, the British government
established a seven-year minimum period after which the
restrictions on British Telecom could be reviewed.  Likewise, AT&T
was banned from entering the electronic publishing market for seven
years in order to promote competition. 
  
     Regarding the outstanding issues of regulatory flexibility,
while H.R. 3636 recognizes that "smaller" carriers should be
exempted from certain regulatory requirements, the bill should
focus on market power, not size, in determining the need for
regulatory flexibility. Specifically, the FCC should be required
to exempt non-dominant providers of telecommunications services
from any common carrier requirements not necessary to accomplish
the purposes of the Communications Act.  The FCC has long
recognized that carriers without market power need not be subject
to the same degree of regulation as "dominant" carriers.  On much
the same basis, Congress itself recently enacted legislation
authorizing the FCC to relieve providers of wireless services from
the full range of regulations applicable to landline carriers. 
  
     The treatment of rural telephone companies under HR 3636
raises some specific concerns.  They are statutorily exempt from

interconnection and equal access requirements, and the FCC is
empowered to waive any other infrastructure requirement for common
carriers providing telecommunications services in rural areas. 
These exemptions create a significant regulatory disparity:  a
rural telco would be able to enter the cable business, but would
not be required to provide interconnection and equal access to a
rural cable operator that wished to provide telecommunications
services. 
  
     Buyouts and Joint Ventures.  The buyout provisions of H.R.
3636 impose a _ (missing text) _ telcos' video programming
activities are not subsidized by rate payers and that the waiver
will not harm the interests of telephone rate payers or cable
subscribers.  These provisions substantially weaken the bill's
safeguards.  The record is absolutely clear that telephone
companies have strong incentives to act anticompetitively, given
their market power, resources, and regulatory environment, and that
they will act on these incentives. 
  
     The bill also permits a telco to provide "inbound
telemarketing" or referral services for its video affiliate if such
services are provided on the same terms to any other video
programmer or cable operator.  A telco can petition the FCC for
permission to market video programming directly in a particular
geographical area if a "cable operator ... provides
telecommunications services and markets such services jointly with
video programming services."  Allowing the incumbent telephone
company, which provides an essential service, to provide inbound
telemarketing is an invitation for abuse. 
  
     The FCC is also required to prescribe rules to prevent cable
operators from using cable revenues to "cross-subsidize" the
provision of telecommunications services.  This requirement is
inappropriate since cable companies do not have the ability to
charge artificially high cable rates to finance their entry into
other lines of business. Telephone companies, as monopoly providers
of an essential service, receive revenues based on a rate of
return.  Consequently, they have both the ability and the incentive
to cross-subsidize. 
  
     Regarding the applicability of the Cable Act to telephone
companies offering video services, the following is true.  There
is no provision in H.R. 3636 that requires a telephone company's
video programming affiliate - i.e., the entity that provides cable
service to subscribers - to obtain a cable franchise from the local
franchising authority.  Also, must carry, retransmission consent,
and the other Cable Act requirements enumerated in H.R. 3636 apply
to the telco's video platform - its common carrier video
transmission offering - and not it its video programming affiliate. 
Thus, the telco affiliate that retails video programming in
competition with independent cable operators would not be subject
to the regulations applicable to those cable operators.  These
disparities would place cable operators at a substantial
competitive disadvantage.
   
     Finally is universal service.  As noted earlier, the cable
industry accepts its obligation to help ensure universal basic
telephone service as it enters the broader market for voice and
data services. 
  
     While H.R. 3636 describes a process for ensuring universal
service, there are several concerns with the basic definitions
contained in the bill.  For example, the statutory language
strongly suggests an expansive definition of "universal service"
(i.e., what service(s) should be subsidized), requiring the
maintenance of "quality services at affordable prices," as well as
a universal service "plan" that "seek(s) to promote access to
advanced telecommunications services by including [such] services
in the definition of universal service ..."  The costs of
subsidizing such an unrealistically broad definition of universal
service could easily overburden providers of telecommunications
services and their customers.  The bill tempers this broad mandate
by stating that the universal service plan should "maintain
affordable rates."  However, given the bill's scope, such a
disclaimer may not be adequate.  In addition, the bill states that
all providers of telecommunications services must make a
contribution to universal service without also making explicit that
all such providers would be eligible to compete for the funds
collected in a universal service pool. 
  
     As competitors enter the local telecommunications marketplace,
they must begin to share in the costs of ensuring that basic
telephone service is available to all Americans.  Subject to
appropriate statutory guidelines, regulators should determine how
much of a contribution to universal service is included in the
rates charged by local telcos for service subject to competition,
and devise an equitable means of apportioning that amount among all
providers of competitive local telecommunications services.  The
funds collected in this manner should be made available to any
provider of local telecommunications that can deliver universal
service most economically and efficiently. 
  
     In conclusion, the national communications infrastructure is
a vast mosaic in which cable television is an important piece.  In
the next few years, cable companies could play an even greater role
in that infrastructure than they do today, as the introduction of
new technology enables cable operators to add voice and data
transmission to their wide range of video offerings.  The cable
industry envisions a "network of networks" in which Americans can
choose between competing providers of advanced communications
services.  But in order to fulfill that vision lawmakers must
proceed cautiously to ensure that true competition can survive. 
  
     By opening the local telephone loop to competition, and by
adopting a policy of entry into television by big telephone
companies, lawmakers can take the first major step toward achieving
a competitive telecommunications marketplace that is founded on
facilities-based competition.  The cable television industry is
eager to compete and to use its resources to bring advanced
communications services to all Americans.  H.R. 3636 brings us
closer to realizing the common goal of an advanced, competitive,
and accessible national telecommunications infrastructure.  NCTA
looks forward to working with this committee to refine and pass
H.R. 3636 in 1994. 
  

 


From mech  Mon Mar 14 19:38:33 1994
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Date: Mon, 14 Mar 1994 19:38:32 -0500
From: Stanton McCandlish <mech>
Message-Id: <199403150038.TAA29179@eff.org>
To: mech
Subject: Edward Reilly - National Association of Broadcasters
Status: O



   
		TESTIMONY OF EDWARD T. REILLY

          THE NATIONAL ASSOCIATION OF BROADCASTERS  

	BEFORE THE HOUSE COMMITTEE ON ENERGY AND COMMERCE

	 SUBCOMMITTEE ON TELECOMMUNICATIONS AND FINANCE

    				ON

	 H. R. 3636 THE NATIONAL COMMUNICATIONS COMPETITION AND

             INFORMATION INFRASTRUCTURE ACT OF 1993
 
                        FEBRUARY 2, 1994
 
     MR. EDWARD T. REILLY:  Thank you, Mr. Chairman, for the
opportunity to testify here today.  The national Association of
Broadcasters (NAB) represents the owners and operators of America's
radio and television stations, as well as the major networks.  As
such, we have a significant interest in the subject of today's
hearing.
 
     Broadcasters have been serving the American people with news,
information and entertainment for more than seven decades.  Indeed,
radio and television have been the heart of the nation's 
"information infrastructure."  As new technologies have emerged in
recent years, we have adapted our role to this new environment. 
Yet we remain the single free and "universal" service available in
this country now and in the future.
 
     Unfortunately, in the rush to move forward on the so-called
"information highway, " we believe the need to include broadcasters
as an integral part of that grand design has been largely
overlooked by the Administration and by some in Congress.  We
cannot allow that to happen.  Broadcasters play far too important
a role in our society for our industry to be shunted aside simply
under the guise of embracing new transmission paths.
 
     In addition to our transmission role, our program creation _
news, sports, entertainment and public service programming _ make
up the bulk of all the content the American people watch and enjoy. 
We do it in a very cost-effective fashion and we do it for free _
drawing all of our revenue from advertising.
 
     Let us look at how broadcasters see the debate unfolding and
raise some concerns that we believe you and your subcommittee
should address as you move forward with significant
telecommunications legislation this session.
 
     Whatever Congress and the Administration do on the national
Information Infrastructure (NII), the byword must be competition.
Broadcasters embrace competition _ it is competition that has made
our industry do such an outstanding job of serving the public
interest for so many years.  In fact, we face internal competition
in every market we serve.  Competition also will ensure that
consumers will benefit both in cost and in services offered.
 
     Last Congress, this subcommittee under your leadership passed
landmark legislation.  The Cable Television Consumer Protection and
Competition Act of 1992 was a watershed for our industry and for
the American people.  The goal was two-fold; provide regulation
where there was an absence of effective competition, and create an
environment that allowed for greater competition among
multi-channel video providers.  While there have been many bumps
in the road in implementing this legislation, we continue to
believe that the 1992 Cable Act was important and necessary
legislation that will benefit the American people and it has the
potential to create a more competitive telecommunications world.
 
     You notice we used the work "potential."  We do so because in
recent months, we have seen a numer of activities that we believe
threaten the ability of competition to flourish in this new world
of telecommunications.  And if that trend continues unabated, the
promise of the Cable Television Consumer Protection and Competition
Act may never be fully realized.
 
     New technologies may offer American consumers the most
exciting and efficient telecommunications system ever imagined. 
With the spread of fiber optics, satellites, computers, video and
audio services, digital technology and more, we are experiencing
the "convergence" of technologies that may create thousands of new
jobs, allow people to work at home, make our world safer, increase
our productivity, and provide access to information and
entertainment that is unparalleled anywhere in world history.  This
convergence of technologies can be good _ good for our industry,
good for other communications industries and good for the public. 
Broadcasters are already exploring many new ways to work with these
technologies to provide better and more diverse services to our
local communities. 
 
     But in the wake of the proposed merger of Tele-Communications,
Inc.  (TCI) and Bell Atlantic, one of the nation's seven Regional
Bell Operating companies (RBOCs), this convergence instead may turn
into concentration _ concentration of monopoly power, concentration
of access  (i.e., becoming the ultimate "gatekeeper"), and
concentration of resources. Without a "blueprint" from Congress
about how convergence can promote competition, we believe this
merger represents a net loss to the American people, not a net
gain.
 
     Competition must be the watchword for any national information
infrastructure.  Without competition between telephone companies,
cable operators, satellites, broadcasters and other media, the
American people will not fully realize the benefits of the new
technologies all of us are seeking.
 
     The Bell Atlantic federal court decision earlier this year was
a serious blow to a competitive marketplace.  When the court ruled
that the cable/telco cross-ownership provisions of the 1984 Cable
Act were unconstitutional as they applied to Bell Atlantic, some
observers saw the decision as a dangerous step in the telcos'
efforts to enter unregulated businesses.  It removed the last,
though narrow, restriction on telcos entering the mass
media/information services area, with few if any restrictions or
regulations that would address cross-subsidies and anti-competitive
behavior.  As we know, the Regional Bell Operating Companies have
made no secret of their desire to enter into video and audio
services and other activities which they were prohibited from
entering under the Modified Final Judgment (MFJ). For many
information services providers, the lifting of the MFJ's
information service restriction crumbled the wall which protected
them from RBOC dominance.
 
     In the video industry, the merger of Bell Atlantic with TCI
_ coupled with the court decision overturning the cross ownership
provision _ may seriously erode the prospect of the development and
delivery of future, competitive telecommunications services, unless
you and your subcommittee develop legislation that will ensure that
competition is maintained.
 
     Broadcasters are eager for development of a new
telecommunications regime that would allow for fair and equal
access to a national information infrastructure.  But what we have
seen born out of the Bell Atlantic court case and the subsequent
announcement of Bell Atlantic's merger with TCI is not competition
_ but a joining of two huge communications monopolists with no
balancing between entry and the assurance of future competition. 
Achieving that balance is the role congress must now fulfill.
 
     We already know the problems that can occur when
communications industries become increasingly vertically integrated
_ that is, when the owners of the "software" also control the
"hardware" in video and audio delivery systems.  The abuses caused
by vertical integration were at the very heart of last year's cable
bill.  For too long, lawmakers, consumers and competitors have seen
major cable multiple system operators (MSOs) twist their ownership
power of the conduit and the content to their advantage.
 
     That market power retarded the development of both potential
competitive cable services, such as another cable news channel, and
delayed alternative delivery systems, such as MMDS, from coming
into existence.  In fact, it is the existing cable monopoly which
has prompted many on this subcommittee to champion telco entry. 
We need now to establish the blueprint for that entry, since events
have made moot the question of whether there will be entry.
 
     We also are concerned with the RBOCs'  "changing" attitude
toward universal delivery of broadcast service.  In many
conversations with them over recent years, they have repeatedly
assured us that they were interested in carrying broadcast signals
in the event that they were allowed to provide video services.  In
fact, they repeatedly assured us that they had no problem with
"must carry," as was enacted last year by the Congress.  Yet just
a few months ago, all but one of the RBOCs opposed must carry in
a filing at the Supreme Court, claiming that must carry would
infringe on their First Amendment rights.  With these telcos now
looking to enter the cable business, it seems as if they have
adopted the cable industry's notion of their role as gatekeeper of
the video marketplace.
 
     Mr. Chairman, our focus today, however, is on the new National
Information Infrastructure (NII) that the Administration has
outlined and which your legislation, H. R. 3636, attempts to
facilitate.
  
     Last month, Vice President Al Gore laid out the basic
structure of the NII.  It is based on five principles, 1)
encouraging private investment, 2) providing for and protecting
competition, 3) providing open access to the network, 4) avoiding
the creation of information "haves" and "have nots", and 5)
encouraging flexible and responsive government action.
 
     As broadcasters view these principles, we find ourselves in
total agreement with then.  Without these kinds of basic principles
as a framework, the NII will not be able to achieve any of the
goals President Clinton, Vice President Gore or any of you have for
it. However, the problem is that as the administration views the
NII, there apparently is no place for broadcasters.  It seems to
assume delivery only by wireline transmission.
 
     In his remarks before the Academy of Television Arts and
Sciences on January 11, the Vice President pointed out that private
investment will be spurred by ensuring that there is more
competition for all phases of he information toll road. 
Unfortunately, however, when the Vice President listed the
industries he saw as important competitors to provide the
infrastructure, he failed to include broadcasters on that tally
sheet.  Yet broadcasters _ as the result of the tremendous
development of digital video delivery systems _ will soon have the
technological capability to provide many of the same kinds of
services a telephone companies, cable operators or electric
utilities without needing the massive infrastructure up-front
costs.  In addition, because there are an average of five or six
television stations and up to 40 radio stations in each market,
there is a potential for dozens of competing broadband carriers in
each market.
 
     In addressing the development of the NII and resolving the
question of telco entry into cable, the discussion has focused on
the advent of competition between and among just two distinct
monopolies _ local telephone companies and cable TV operators.  In
opening these two monopolies to competition between each other and
hopefully other entities, we must not ignore and damage existing,
related competitive markets.  While two competitors are better than
one, we want an information infrastructure with as many players in
every market as possible.
 
     On the issue of open access, the Vice President emphasized the
need to ensure non-discriminatory access to telephone company
networks, including access for public broadcasting.  But what about
commercial broadcasting?  Is it not in the public interest to
ensure open access for local radio and television stations, often
the only providers of local news, weather information, and public
service programming? We are the only ones who provide their
services free to both rich and poor, literate and illiterate,
educated and those not so fortunate.
 
     The Vice President also discussed the new approach to
regulation that would be offered to broadband, interactive
services.  They could choose the current provisions of the 1934
Communications Act, or they could opt for regulation under new
Title VII, which would trade non- discriminatory access to their
facilities for de-regulation.  Yet what about the huge regulations
placed on broadcasting?  If those were modified, could not this
free and ubiquitous, already -universal service be able to provide
such services to nearly every segment of the public?
 
     Through the NII, the government is attempting to establish
comprehensive, technology-neutral places that encourage the
universal distribution of broadband services to the public.  Yet
in so doing, the NII has yet to deal in any meaningful way with the
role broadcasters can and should play in ensuring universal, open
access to many of these services.
 
     Mr. Chairman, broadcasters believe that the NII must be
expanded to include our industry as a vital spoke in the wheel of
service delivery and technological development.
 
     We must have a legislative framework that will set reasonable
safeguards to protect consumers and current content providers if
we are going to allow virtually unrestricted telco entry into video
and other services.  Any legislation must provide at its roots real
choice and real benefits to consumers _ along with assurances of
access to telco and cable delivery systems by a wide range of
information providers.  Crucially, you must make sure that the
risks of such entry into unregulated businesses are borne by the
shareholders of these companies, not the rate payers for either
cable or telco.  To do otherwise would be grossly unfair and set
the stage for an environment where the multitude of voices could
not expect to compete. 
 
     Some have suggested that antitrust law can prevent misbehavior
on the part of telcos or cable in such cases.  We respectfully
disagree. The long, expensive and uncertain nature of antitrust
litigation and enforcement makes it an unwieldy tool for the
fast-moving field of telecommunications.  For example, the MFJ was
agreed to only after 10 to 12 years of litigation.  Competitors
simply cannot afford to wait 10-12 years forthe Congress to
establish the environment for information diversity to flourish,
not the courts, and not the Justice Department.  Their role should
be limited to enforcing the law, not creating it.
 
     There are also copyright concerns regarding the NII
legislation. Some, for example, would like to use the NII
legislation as a backdoor means of expanding performance royalty
rights, which congress has repeatedly refused to give.  Although
not within the jurisdiction of the Energy and Commerce Committee,
NAB urges the Congress to thwart any such efforts.
 
     Before looking at your bill, H. R. 3636, let us summarize the
position of the National Association of Broadcasters on the NII,
which was approved by our Joint Board of Directors just two weeks
ago.  
     Broadcasters need and want competitive telephone company entry
into the video distribution marketplace.  Our history with monopoly
cable operators, particularly during this past year's
retransmission consent discussions, proved that unless there are
alternative distribution systems besides cable, we will continue
to have little ability to receive appropriate value for our signals
when they are carried by a multi-channel provider.
 
     Thus, the essence of the NII _ to bring about a new
competitive information infrastructure for all Americans _ should
help bring about the kind of marketplace where local broadcasters
can flourish. But again, it appears that the Administration
continues to overlook the realities of what broadcasters do and can
do as part of this new telecommunications landscape.
 
     Over-the -air, locally-based radio and television broadcasters
are and will remain the ONLY means of providing innovative,
universal band non-discriminatory service with no direct charge to
the public. To that end, broadcasters support these basic tenets
which we urge you to weave into any legislation.
 
     First, the removal of regulatory barriers that inhibit
competition is a stated goal of the NII.  To ensure that regulatory
freedom, we believe that government should review broadcast rules
and modify and eliminate any that may restrict the full
participation by broadcasters in the NII.
 
     Remember _ a bit is a bit is a bit.  In computer language,
that means that a video signal transmitted digitally is the same
thing as an audio signal or a data transmission or any other
digital communication.  With the coming advent of digital
broadcasting, both for radio and television, broadcasters will be
able to provide a full panoply of services in addition to our
current programming if we are allowed to do so.
 
     With the increased spectrum efficiency that digital
technologies allow, broadcasters could and should provide new
competition in a number of services now provided by wireline
businesses.  Data transmission, voice and paging services within
existing spectrum _ all of these possibilities and  more loom on
the horizon.  Imagine if you will, these potential new services
broadcasters could provide _ broadcasting information to personal
digital assistants that people carry in their pockets or
briefcases; broadcasting data to pagers or fax machines;
broadcasting data or even TV programming to laptop computers; and
providing additional information along with advertising.  For
example, if a car commercial were airing, viewers could access
availability, price information, even maps of how to get to the
nearest dealer.
 
     In a digital world, our efficient, wireless distribution
system can and should form the basis for additional competition in
our information infrastructure.  But to get there, we need a new
regulatory framework for our business that makes sense for the
public as well.
 
     Wireless communications generally are a more efficient means
of providing universal service, in part because the capital costs
of distribution are often much less when compared to wired forms
of communications like telephone or cable.  Broadcasting, of
course, must be included in any list of wireless media.
 
     Indeed, broadcasting has the widest coverage of any wireless
or wired media today.  More households have televisions and radios
than have telephones or cable service.  Even with 60 percent of the
nation subscribing to cable, only 40 percent of the nation's
televisions are actually hooked up to a cable.  Over-the-air free
television and radio reaches nearly every American and at a
fraction of the cost of providing wired services.  We are the ones
people turn to in times of disaster, such as the recent Los Angeles
earthquake, where we save lives and provide massive public service
benefits.
 
     Beyond broadcasting's natural wireless advantages in providing
universal service, broadcasting has a specific, unique statutory
mandate.  The communications Act of 1934 explicitly requires a
broadcasting structure built upon a foundation of locally-based
radio and television stations that are equitable and widely
distributed throughout the nation.  Furthermore, these local
stations have public interest obligations that are incumbent upon
no other wired or wireless medium.  Recognizing broadcasting's
place in the communications infrastructure of the future will
ensure that this public service remains available to all of our
citizens.
 
     All of these new business opportunities are ancillary to our
basic charge under the 1934 Communications Act.
 
     Yet in many ways, broadcasters are still being treated by
regulators as they were 70 years ago when the first AM radio
stations went on the air.  We are proud of our record of serving
the public interest and have no desire to stop doing that vital
work.  But what we do seek in this new world of information
providers is the removal of artificial barriers and impediments
which limit our ability to serve and to compete against business
operators with much deeper pockets.  Does it make sense, for
example, to allow Bell Atlantic and TCI to merge, yet restrict the
number of local television stations a single company may own to 12? 
In a world of "500 channels," how can we possibly hope that
single-channel providers will survive unless we give them the
regulatory tools to do so?
 
     One of the frequently-cited goals of the National Information
Infrastructure policy debate is to assure universal service to the
public, so that our nation does not evolve into one of
communications "haves and have nots."  Making sure broadcasting
stays strong is one way (and maybe the only way) to assure that
universal service will continue for years to come.
 
     There is also the issue of jobs.  Given the Administration's
and Congress' desire to increase jobs, it is imperative that they
consider the contributions to employment made by the broadcasting
community. Of course, there are the 187,000 Americans who presently
work at local radio and television stations, broadcast groups, and
national networks.  Equally important are the multitude of jobs
created as a result of the advertising aired on local radio and
television stations.  By airing this advertising, businesses, both
large and small, and "get the word out" about their products and
services.
  
     As suppliers of by far the largest audiences for advertising
messages, local and national radio and television broadcasters
provide an essential function in the workings of the local and
national economies.  By providing these large audiences,
broadcasters are providing a necessary input for many businesses
to attract a large enough customer base.  Without attracting a
large enough potential customer base, many of these businesses will
not reach a scale to warrant investing in new products or services. 
Hence, they would not invest, thereby giving up the possibility of
new jobs and greater output.
 
     Second, the NII can only work if the government establishes
clear and enforceable policies that promote full and vigorous
competition among wired and wireless service providers.  Therefore,
we believe the following safeguards should be included in any
legislation that this subcommittee approves, a competitive
multi-wire marketplace should be promoted by prohibiting telephone
company purchase or control of existing "in-region" cable systems,
and by requiring the establishment of common carrier-based
platforms.
 
     There is NO competition created when major telephone companies
simply buy up existing cable systems.  In fact, such purchases will
simply foreclose the market from any real competition for video and
audio services.  We note that the Administration strongly supports
this position, to provide continued access by broadcasters,
regulatory standards must be set to ensure non-discrimination in
"navigational" systems (i.e., in those systems in the NII used to
help consumers make choices about services which are available to
them.)
 
     In a world of 500 "channels," a key to using such a system
will be how consumers access the various choices available.  As we
learned when a few major airlines owned the reservations computer
network used by most travel agents, there is plenty of opportunity
to "fudge" the system to favor one provider over another.  When a
customer dials up this information highway program on his or her
computer, how that first menu appears will have a great impact on
which choices that consumer makes, to protect against the
possibility of cross subsidization, telephone companies should be
allowed to offer video/audio services only through separate
subsidiaries, with structural separations beyond accounting
procedures.
 
     It is not enough merely to have telephone companies build a
temporary "fence' around their unregulated information service
offerings.  If telephone business to compete with other providers
who do not have that resource, then no real competition will
survive, legislation should include swift and certain penalties for
anti- competitive behavior.  We believe that there should be
specific, realistic disincentives to deter telephone or cable
companies from trying to squeeze out competitors using their
"highways", the wired delivery of video/audio programming must
ensure the integrity and preservation of the locally-based system
of broadcasting, through continuation of such rules as "syndicated
exclusivity" and "network non-duplication."
 
     If broadcasters cannot protect the programming that they
create or purchase for exclusive distribution in a given market,
then they will soon lose the ability to bid for and to carry such
programming. It is vital that Congress ensure that the FCC's rules
which protect that proprietary interest be maintained, the
protections of the 1992 Cable Act, including must carry,
retransmission consent and buy- through prohibitions, should apply
to the distribution of video programming through wired delivery
systems.
 
     Broadcasters fought hard for the right to control the use of
their signals by others.  That right _ thanks to you and the 1992
Cable Act _ has been restored.  But the advent of new technologies
can threaten our ability to make sure that we do not once again
find ourselves at the short end of the stick.
 
     These principles must guide you and your panel as you weigh
how best to craft legislation that will accommodate the new
technologies while not diminishing the ability of current
technologies to continue their important service to the public. 
It would be a shame if our economy supports the construction of a
digital highway that ends up traveled by fewer providers than
current exist, instead of more. 
 
     Let us look specifically at your legislation and see how it
stacks up against these basic principles.
 
     In looking at the Chairman's bill, H. R. 3636, we believe the
authors have taken an important first step toward trying to
untangle the twisted web of telco entry legislation.
 
     An attractive feature of this legislation is that it requires
telcos which provide video programming directly to their
subscribers to offer a common carrier-based video platform _ which
the FCC has termed "video dial tone."  The addition of a video
common carrier tier will help provide competitors of the
telco-provided video delivery system with nondiscriminatory access
to the telco's customers.  This is certainly a big step toward
ensuring competitive fairness.
  
     However, the bill contains several problem areas which must
be closed.  Foremost is the anti-buyout provision, contained in  
section 656  (a) .  We favor prohibiting telcos from buying
existing cable systems within their telephone service area.  The
anti-buyout provision of this legislation, however, is effectively
neutralized by an exemption contained in proposed section 656 (b). 
Section 656 (b) (2) makes the buyout prohibition inapplicable if
the cable system serves less than ten percent of the households in
the service area of the carrier "and its affiliated common
carriers."  As the provision seemingly applies to each cable MSO
separately, I doubt that there are many cable operators, if any at
all, that serve ten percent of the total service area of any RBOC
or GTE.  The anti-buyout provision, therefore, would affect only
small telephone companies in non- rural areas.
 
     As proposed, section 656 (b) (2) could merely replace a local
cable monopolist with a larger, more powerful telephone monopolist.
In order to ensure competition in the video programming delivery
market, telcos should not be allowed to purchase existing cable
systems within their telephone service areas.  Such a flat-out
prohibition _ with no exemptions _ is contained in Senate bill S.
1086 as an effective means of promoting competition.  Instead, the
bill allows telcos to own up to five percent of an existing cable
system.  That provision enhances competition.
 
     Section 656 (b) (2) also could thwart the retransmission
consent provision of the Cable Act.  If a local broadcaster could
not reach agreement with the telco for carriage on its cable
system, the only alternative in many cases would be carriage on the
telco-operated video dial tone system.  Absent real competition,
particularly the assurances of two wires to each home, the telco
would control total access to the home, eliminating any real
bargaining on retransmission consent.
 
     While we support the establishment of a common carrier
platform as found in H. R. 3636, we call upon the subcommittee to
strengthen the provisions that require that the video platform's
customers receive at least the same quality service for
transmission, inter- connection and inter-operability as those
programmers carried on any other telco-provided video programming
service.
 
     Such a change will ensure that independent program providers,
such as local broadcasters, will not be 'ping-ponged" back and
forth between the telco's cable service and is common carrier
platform.  The ability of the local telco to provide tow video
services which are regulated differently can only benefit consumers
and other competitors if there is a second wireless carrier serving
the same area.  In the event that is not the case, the subcommittee
should maintain common carrier regulation on the telco, even if it
provides video service directly to the home.
 
     Similarly, syndicated exclusivity and network non-duplication
could be lost as local market protections for broadcasters.  We
urge that H. R. 3636 re-affirm those regulations for all uses of
broadcast signals, whether regulated by Title VI (cable), Title II
(common carrier) or a new Title VII of the 1934 Act.
 
     H. R. 3636 should also be modified to address the potential
anti- competitive problems that would be created by not addressing
the ability of telcos to enter into joint ventures or to acquire
sizable minority interests where they can exercise effective
control.  
     Another point which needs to be strengthened is the separate
subsidiary requirement for the provision of video programming.  The
current legislation only sets out the broad plan for the separate
subsidiary requirement; it merely provides that the telco and its
video programming subsidiary must maintain separate books and
records, must conduct separate promotional advertising and cannot
own real or personal property in common with each other.
 
     A much stronger separate subsidiary provision is found in H.
R. 3626, which deals with electronic publishing by RBOCs.  That
legislation details restrictions on the RBOC regarding such matters
as joint directors, joint personnel, joint equipment, joint
investments, and common marketing tools, such as names, trademarks
and service marks.  The provision in H. R. 3626 provides a much
better prospect for real competition.
 
     We can think of no valid reason why electronic newspaper
publishers should have greater protection than other information
services providers.  Thus, we urge the adoption of similar separate
subsidiary requirements for all telcos in the provision of video
programming as part of your bill, H. R. 3636.
 
     We stand ready to work with you, other members of the
subcommittee and your staff to shape this legislation so that it
will accomplish all of the goals both you and we seek.  But the
bottom line is that broadcasters cannot and must not be ignored in
this process. Whatever legislation is produced must take into
account the unique role that we play, and take advantage of our
universal access, our local service and our free distribution
system as a vital part of the information network of tomorrow.
 
     President Clinton's call for passage of the NII this year
meets with our concurrence.  Unless Congress acts soon to place
meaningful rules on the convergence of telephone, cable, computer
and related industries, we urn the risk of having the marketplace
act and deny the very benefits to all Americans that the NII
envisions.  If there are more mergers like those announced in
recent months, then the rules will be set before Congress has the
chance to establish a game plan that will ensure that these mergers
do not foreclose competition in the broadband delivery world.
 
     But in our haste to craft those rules, broadcasting must be
a factor in the framework you and this subcommittee create. 
Wireless technology such as ours, augmented by the digital
revolution we are pursuing, will offer a myriad of new and
increasingly efficient ways to deliver all kinds of services beyond
traditional broadcasting to all Americans.  You cannot and should
not allow this potential resource to be denied to the American
public based on outmoded assumptions about what our industry can
or cannot do.
 
     In the spirit in which you and the Administration want to move
forward on the NII, we pledge to do everything we can to help you
achieve a truly balanced telecommunications policy.  Above all
else, that policy must ensure that there is continued competition
_ not just competition between telephone companies and cable, but
flourishing competition from other existing and yet-to-be-created
media, including broadcasting.  Let us not allow our wanderlust
search for the information toll road to cause us to abandon our
reliable, resilient and time-tested system of over-the -air radio
and television.
 
     Again, on behalf of the NAB, thank you, Mr. Chairman, for the
chance to discuss our views with you.
 

 


From mech  Mon Mar 14 19:39:05 1994
Received: from localhost (mech@localhost) by eff.org (8.6.4/8.6.4) id TAA29230 for mech; Mon, 14 Mar 1994 19:39:04 -0500
Date: Mon, 14 Mar 1994 19:39:04 -0500
From: Stanton McCandlish <mech>
Message-Id: <199403150039.TAA29230@eff.org>
To: mech
Subject: Marilyn Praisner - National League of Cities
Status: O



 
                   TESTIMONY OF MARILYM PRAISNER
 
      CHAIRMAN OF THE COMMITTEE ON MANAGEMENT AND FISCAL POLICY
  
  ON BEHALF OF THE NATIONAL LEAGUE OF CITIES THE NATIONAL THE

 UNITED  STATES CONFERENCE OF MAYORS THE NATIONAL ASSOCIATION OF

 COUNTIES THE    NATIONAL ASSOCIATION OF TELECOMMUNICATIONS

                      OFFICERS AND ADVISORS
  
               BEFORE THE U.S. HOUSE OF REPRESENTATIVES
 
                   COMMITTEE ON ENERGY AND COMMERCE
 
            SUBCOMMITTEE ON TELECOMMUNICATIONS AND FINANCE  
                           FEBRUARY 2, 1994
 
     HON. MARILYN PRAISNER:  I would like to thank the Chairman and
members of the Subcommittee for the opportunity to testify today
on behalf of the United States Conference of Mayors, the National
League of Cities, National Association of Counties and the National
Association of Telecommunication Officers and Advisors
(collectively, the "Local Government Organizations") concerning
H.R. 3636.
  
     While we have long supported ensuring a more competitive
environment to enhance our national telecommunications
infrastructure, we call on Congress and the administration to make
municipal and county leaders full and equal partners in building
this new information superhighway.  Although, global
competitiveness and the information superhighway have occupied much
of the focus of this legislation, it is critical that the bills
assure that our country's communities _ large and small, rural and
urban, rich and poor _ benefit from the changes in
telecommunications.  It is at the community level where the true
impact of these dramatic changes will be experienced _ in people's
personal lives, their jobs, schools, libraries, hospitals,
transportation, and public safety.
 
     Local Government Organizations welcome and encourage the
development of the information superhighway.  Local Government
Organizations believe that development of the information
superhighway may result in economic development and new jobs in
local communities. Local Government Organizations have
long-standing policies that state that there should be greater
competition in the local
telecommunications market place, which should result in lower
prices for consumers, businesses, institutions and other users of
telecommunications services.  In many communities, local
governmental entities are one of the largest users of
telecommunications services and would benefit from the lower prices
that would result from competition.
 
     However, as custodians of public property, local governmental
authorities have a responsibility to ensure that the development
of the  information superhighway is done reasonably, properly and
in a safe manner.  In order to protect and advance the public
interest in the information superhighway, the legislation must
affirmatively preserve a local community voice in the emergence of
a competitive voice, data, video, and multimedia landscape. 
Federal policy must allow local governmental entities the authority
and flexibility to protect local community interests.  Congress
must not leave local interests at the mercy of "trickle down"
national telecommunications policy.
 
     The Cable Communications Policy Act of 1984 ("Cable Act"), as
amended in 1992, serves as a model of how Congress can ensure that
the information superhighway develops in a manner consistent with
the public interest.  In enacting the Cable Act, Congress confirmed
the right of local franchising authorities to franchise cable
operators and to ensure that cable subscribers receive appropriate
benefits and protection.  The Cable Act struck an appropriate
balance between streamlined regulation and public needs and
interests.  The cable industry has experienced tremendous growth
and development since the Cable Act was enacted in 1984, while
franchising authorities _ through the franchising process _ have
ensured that cable subscribers received appropriate benefits and
protection.  The Cable Act demonstrates that local regulation in
the public interest would be compatible with the development of the
information superhighway.
  
     In fact, the growth of the cable industry has been so
successful that the Local Government Organizations now urge
Congress to take the next step and enact legislation that will
further promote competition to cable operators in the provision of
information services, subject to appropriate safeguards.  At this
time, telephone companies ("telcos") have the capability of being
one the few viable alternatives to traditional cable operators.
 
     We are pleased that H.R. 3636 would permit telcos to provide
multichannel video programming services as an alternative to
traditional cable operators.  However, we are deeply concerned that
H.R. 3636 would not subject such telcos to the same public interest
obligations and requirements to which cable operators are subject. 
In addition to promoting competition, H.R. 3636 should ensure that
the public receives the benefits and protection they have a right
to expect from commercial users of public property.
 
     Local Government Organizations believe that the best way to
ensure that telcos providing video programming services meet local
communications needs is to subject them to the same franchising
structure and public interest regulations that have operated
successfully with respect to cable operators.  H.R. 3636 should be
amended so that telcos are subject to the local franchise
requirement under section 621 of the Cable Act, and to the other
appropriate public interest obligations under the Cable Act. 
Through the franchising process, local communities can ensure that
telcos, among other things, provide educational and community
communications networks which provide local information services
responsive to local community needs, such as, but not limited to
public, and educational access channels, facilities and equipment;
provide channel capacity and associated support to assist  local
governments in providing improved services and in improving
communications with their citizens through institutional networks;
compensate local governments for the for-profit use of local public
property and right-of-way; abide by local customer service
standards and other consumer protection measures to prevent
inadequate or discriminatory service; and do not discriminate
against, for example, low-income neighborhoods.
  
     The same requirements should be imposed on all providers of
multichannel video programming to ensure that there is open market
entry and uniform rules for all participants.
 
     In addition, H.R. 3636 should be amended to prohibit a telco
from buying out, or obtaining any ownership interest in, a
franchised cable operator in their telephone service area, except
in exception circumstances subject to approval by the local
franchising authority. Moreover, H.R. 3636 should contain
provisions authorizing local governments to require local
communications facilities to deliver governmental and other
community related services.  This authority should give local
governments discretion to require capacity, technical support and
development of demonstration projects.
  
     Local Government Organizations have other concerns that must
be addressed.  We are concerned about three aspects of the proposed
telecommunications infrastructure:  1)  the privacy safeguards
needed to protect local governmental information; 2)  the revenue
implications for cities and counties; 3)  further assurances that
the information superhighway will result in the intended public
benefits.
  
     Local Government Organizations believe that the legislation
should contain privacy safeguards which, among other things, would
deter and detect unauthorized access to local government
information, such as property tax records.
 
     With regard to revenue implications, we have broad concerns
about the potential impact and lack of clarity with regards to
local rights and authority.  Many cities rely of franchise
agreements to help finance needed public services.  Franchise
agreements also provide local governments access to public
education and government channels.
  
     An additional revenue concern for local governments is whether
out-of-state telephone companies and other telecommunications
providers would be required to collect and remit sales taxes on
goods and information services purchases made by persons in the
local jurisdiction, and thereby restore a level playing field the
competition between local merchants and out-of-state retailers.
  
     In addition, Local Government Organizations believes that the
legislation should contain stronger provisions to ensure that:  (a)
the information superhighway produces the local public benefits
described above, such as, but not limited to, universal, non-
discriminatory service, and the provision of public, educational
and governmental access to the information superhighway; and (b)
information superhighway providers have the technical, financial,
legal and other qualifications necessary to operate.  Since the
local governmental  authorities are closest to the operations of
a telecommunications system in their community, they should have
a role in ensuring that such goals are achieved.
 
     The vision for a highly advanced, robust telecommunications
landscape which will deliver services that are meaningful to the
businesses, institutions and residents of each individual community
will be realized only if such communities have a role in their
development.  That role must balance the need for streamlined entry
and relaxed but uniform regulation with the needs and interests of
people in their own unique locales.  Localism can not be
administered nationally, and Congress and the federal government
must not forget the diversity of our nation's communities in
designing the new telecommunications environment.
 
     The Local Government Organizations look forward to working
closely with the Subcommittee on these issues to make all consumers
the true beneficiaries of the new information superhighway.  

 


From mech  Mon Mar 14 19:39:21 1994
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Date: Mon, 14 Mar 1994 19:39:20 -0500
From: Stanton McCandlish <mech>
Message-Id: <199403150039.TAA29241@eff.org>
To: mech
Subject: David D. Kinley - Sun Country Cable Association
Status: O


      STATEMENT BY DAVID D. KINLEY, PRESIDENT SUN COUNTRY CABLE
  
          ON BEHALF OF THE SMALL CABLE BUSINESS ASSOCIATION
  
      BEFORE THE SUBCOMMITTEE ON TELECOMMUNICATIONS AND FINANCE 
 
     ON H.R. 3636 "THE NATIONAL COMMUNICATIONS COMPETITION AND

               INFORMATION INFRASTRUCTURE ACT OF 1993"
 
                           FEBRUARY 2, 1994
 
     MR. DAVID D. KINLEY:  Good morning Mr. Chairman and members
of the Subcommittee.  My name is David Kinley.  I am president of
Sun Country Cable, a cable television company which operates in 16
small towns with just under 10,000 customers in Washington, Oregon,
and northern California.
 
     I am also Chairman of the Small Cable Business Association
("SCBA").  The SCBA was formed by 100 small, rural cable operators
during an emergency meeting in Kansas City on May 15, 1993.  That
organizational meeting was called in response to the more than 600
pages of incredibly complex rate regulations that had just been
released by the FCC.  The Association has grown rapidly in its
eight month existence.  It now has 278 member companies, all of
whom serve rural areas and small towns throughout America.  But for
these small companies, service to many of these areas might never
have been provided.
 
     SCBA member companies serve 1.5 million subscribers, slightly
less than three percent of all U.S. cable customers.  The median
company size is less than 1,000 customers.
 
     On behalf of all the members of SCBA, I want to commend you,
Mr. Chairman, and the members of the subcommittee, for your efforts
in dealing in a comprehensive and reasoned manner with
extraordinarily complex telecommunications policy issues that are
critical to our nation's future.  We support these efforts and your
recognition of the need to incorporate maximum regulatory
flexibility in dealing with these issues.
 
     WE urge you to ensure that small, rural cable companies will
be active and vital participants in building the National
Information Infrastructure.  It is vital that the less populated
areas of our members and others like them serve will have access
to the same array of services available in the top markets.  We
join FCC Chairman Hundt in supporting the committee's efforts to
guarantee the inclusion of all Americans in the information
economy.  We also agree with Assistant Commerce Secretary Irving
that many rural markets will be unable to sustain competition
between two competing systems.  
     With the foregoing in mind, I would like to turn to several
issues  of particular concern to small system operators:  joint
ventures, mergers, and acquisitions, the establishment of an
information superhighway trust fund, regulatory parity and open
access.
 
     HR3636 prohibits joint ventures, mergers and acquisitions
between telephone companies and cable companies, except in rural
areas.  The bill defines those areas generally as places with a
population of less than 10,000, known as a "rural exemption".
 
     The key issue can sustain competition between two or more sets
of video service providers.  The types of facilities contemplated
for the National Information Infrastructure are quite different
from plain old telephone service or plain old cable service.  The
services will be very sophisticated.  Many are only now being
developed.  Consequently, we so not know what it will cost to
provide these services in small town America.  The only certainty
is that the facilities required in the years to come will cost far
more than the typical cable plant or telephone network that is in
place in rural areas today.
 
     In the small cable business, we focus on the number of homes
we serve, rather than the population in the area.  In rural areas
we serve, some portion of the population will be scattered so
widely that the homes cannot be served economically.  In addition,
a population of less than 10,000 on average would equate roughly
to only 3100 homes. In terms that the telephone companies use, that
would probably average less than 3500 access lines.
 
     This figure is well below the figure used by the FCC to define
small local exchange carriers.  That figure is 50,000 access lines.
Our understanding is that a local exchange area served by 50,000
access lines would average roughly 40-45,000 homes.  In the cable
industry, this equates roughly to a system with approximately 20-
25,000 subscribers.  We note that the definition adopted by the
Small Business  Administration of a small cable operator works out
to about the same size.
 
     Therefore, we recommend that the exemption to the prohibition
on mergers, etc. apply not only in areas of not more than 10,000
population, but also to cable operators serving less than 25,000
subscribers.
 
     We fully support the proposal to authorize the FCC to grant
waivers of the prohibition.  However, the FCC must be afforded
greater discretion to grant waivers where service is not likely to
be available from multiple providers.  The Commission should be
directed to act expeditiously to consider such requests and be
favorably disposed to granting waivers for cable systems serving
less than 75 homes per plant mile; and take into consideration
other factors in the public interest, including but not limited to
the size of the company and whether the cable or telephone system
has adequate financial capability to make the necessary investment
in the information superhighway.
 
     SCBA also urges the Committee to revise HR 3636 to establish
an Information Superhighway Trust Fund.  ("ISTF").  The ISTF would
be modeled on the funding mechanisms currently employed to provide
rural America with universal telephone service.  Funding for the
trust fund would come from the users of telecommunications of all
sorts.  Its goal should be to assure universal access to the NII,
to avoid shutting anyone out of the new information economy.
 
     The ISTF would have two related objectives:  (1) to provide
financial resources to help small companies reach rural and inner
city areas which would otherwise be bypassed by the NII, and (2)
to help schools, community groups, non-profit organizations and
other deserving institutions obtain the resources necessary to
purchase the computer hardware, software and related interface
equipment required to access the NII.
 
     Telephone Companies providing video services should be subject
to the same affirmative regulatory requirements as the cable
operators with which they compete.  We applaud you recognition that
telephone companies entering the video business should be required
to pay franchise fees.  However, like cable operators, they should
also be required to obtain a franchise, provide access channels for
public, governmental and educational uses, and comply with all
other regulatory requirements typically imposed on cable operators. 

     The SCBA endorses equal access and interconnection.  Without
the free flow of information and ideas between competing
technologies and communities large and small, the
telecommunications superhighway now envisioned for this country
will never come to fruition.  It is for this reason that HR3636's
treatment of rural telephone companies must be viewed with
particular concern, as they are exempt from interconnection and
equal access requirements.  In effect, they would be allowed to
provide video services in competition with rural cable companies,
but would bear no obligation to provide equal access and
interconnection to a rural cable operator.  The SCBA urges that all
telephone companies and cable companies, large and small, be
subject to equal access and interconnection requirements.
 
     Mr. Chairman, in summary, I want to emphasize th importance
for this committee to 1)  Allow joint ventures, mergers, and
acquisitions of small cable television companies in low-density,
rural areas under specified circumstances; 2)  Create an
Information Superhighway Trust Fund; and 3) Assure regulatory
parity between existing and new entrants into cable television and
related services operating in competition with one another
 
     Thank you for this opportunity to testify.
 
                                 END
 
 
 
 


 


From mech  Mon Mar 14 19:39:45 1994
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Date: Mon, 14 Mar 1994 19:39:44 -0500
From: Stanton McCandlish <mech>
Message-Id: <199403150039.TAA29250@eff.org>
To: mech
Subject: Gary McBee - U.S. Telephone Association
Status: O


 
  
	    PREPARED TESTIMONY OF MR. GARY MCBEE, CHAIRMAN

		 UNITED STATES TELEPHONE ASSOCIATION 
  
       THE HOUSE ENERGY AND COMMERCE COMMITTEE, SUBCOMMITTEE

				 ON
  
                  TELECOMMUNICATIONS AND FINANCE 
  
                      THURSDAY, FEBRUARY 3, 1994 
  
     MR. GARY MCBEE:  Mr. Chairman, I am Gary McBee.  I am the
chairman of the United States Telephone Association (USTA), on
whose behalf I am testifying today.  As you know, USTA represents
over 1,100 local telephone companies ranging in size from the RBOCs
and GTE to rural carriers with fifty customers. 
  
     More specifically, USTA members are the proprietors of the
finest public switched network in the world.  Local telephone
companies are the only providers of universal service. 
  
     Our nation's local phone companies, together with our brothers
and sisters in the CWA and IBEW, have created and operate the
finest information transportation system on the planet. 
  
     While others operate important appendages in the public
telecommunications system, it is the local phone companies who
provide the heart, the muscle, and most of the brains for this
dynamic body of networks.  And as the Congress moves to perform
major surgery on this system, we need to be mindful of the first
precept of medicine, do no harm, to the health and vibrant system
that is growing stronger and smarter each day. 
  
     While we are unabashedly proud of our system, we are aware
that even a basically health body may need development to reach its
full potential, and USTA pledges to work with the Congress to enact
progressive legislation. 
  
     Indeed, USTA has been working with Congressmen Boucher, Oxley,
Fields, and other for the past six years to enact legislation to
spur modernization of the network.  As early as 1990, that
legislation provided for competition in the local loop so long as
competitors would operate under the equivalent regulation as the
incumbent phone companies. 
  
     I want to specifically congratulate Congressmen Markey,
Fields, and the rest of the Subcommittee who have worked on H.R.
3636.  We, at USTA, believe that the bill clearly takes several
steps in the right direction.  Specifically, it is the most
comprehensive treatment of how to deal with funding universal
service that has been authored to date.  While I will have several
suggestions to improve the bill in this area, I want to clearly
express our support for the general approach. 
  
     In essence, we believe that progressive legislation should
have three key elements.  First, equal business opportunities; that
is, LECs should be able to move into new lines of business as
easily as competitors move into ours.  Second, regulatory parity;
that is, even if business freedoms are granted de jure by
legislation, we cannot, as a practical business matter, compete
unless we all operate under the same rules.  Third, an equitable
sharing of the cost burden of providing universal service; as I
said earlier, only local phone companies have a universal service
obligation.  We currently finance the provision  of universal
service through a complex system of implicit and explicit subsidies
which I will describe more fully in a moment.  Replacing the
utility model of local phone service with a competitive model
demands that this system be dramatically altered just to maintain
the current level of universal service. 
  
     Several studies and independent news articles, including the
Wall Street Journal, have placed the amount of universal service
support at risk in the neighborhood of $20 billion dollars a year. 
This burden is carried disproportionately by the nation's local
telephone companies, which places them at a competitive
disadvantage to new market entrants. 
  
     It is not enough to say that effective competition required
that all competitors must contribute to universal service.  It also
is essential to assure that their contributions are adequate to the
task and that they are shared in an equitable and market-neutral
manner, such as proportionately to each provider's participation
in the market. 
  
     It also is essential to assure that certain existing
mechanisms, such as the Universal Service Fund that presently
supports some of the LECs service high-cost rural areas, are
protected during the transition.  A procedure must be established
by Congress that will ensure that the FCC and the state commissions
act concurrently with the opening of the local exchange market. 
Only if universal service is funded in a competitively neutral
manner will we be able to ensure the provision of today's basic
service at affordable rates while expanding access to new
education, health and entertainment services. However, if we fail
to construct an effective system of funding universal service to
deal with the competitive environment, the effects could be
devastating, and so USTA cautions, we must restructure the
universal system correctly the first time.
   
     Wisely, Congress chose not to specifically define universal
service in the 1934 Communications Act.  As a result, the concept
has grown and changed over the  years.  For example, at one time,
universal service meant access to a party line, now we all expect
private lines.  Indeed, the precise technical characteristics of
universal service may still differ from area to area. 
  
     But the common thread that has held universal service together
is a social contract between local phone companies and their
regulators to assure that basic phone service would be priced at
levels that most people could afford, even though the actual cost
of providing the service is substantially higher.  Hence, universal
service is inherently tied to rates. 
  
     In fact, residential local phone service on average generally
costs about twice as much to provide as phone companies charge
consumers.  In rural areas, the cost for providing service may be
many times the rates charged to consumers. 
  
     Historically, the difference between the amount customers pay
for their service and the cost to provide service has been made up
by the rates local phone companies charge for other services such
as long distance, touch-tone, and including some non-justified
charges such as for color telephones.  Since large businesses have
been the prime users of these other services, they have been the
greatest contributors to universal service. 
  
     In short, regulators have consciously and affirmatively set
prices that would cross-subsidize universal service rates with
money earned from charges for other services provided predominantly
to large business users. 
  
     The mechanisms used to effect these cross-subsidies have been
both explicit (e.g. the University Service Fund) and implicit (e.g.
long distance cost allocations and rate averaging).  In addition,
some of these explicit mechanisms were targeted to companies
serving high cost areas (e.g. the Universal Service Fund) and some
to low income individuals (e.g. lifeline and like-up programs). 
  
     As long as local phone companies retained an exclusive
franchise to provide all of these services, the system worked. 
  
     However, as the telecommunications market has changed over the
years, the system has been modified.  First, the customer premises
equipment (CPE) market became competitive, and its contribution to
universal service was eliminated.  Then, with the divestiture of
AT&T, the toll settlement pools among the then Bell System
companies, as well as the nation's independent telephone companies,
were discontinued.  Residential customer access charges of $3.50
per month and similar charges to business customers were used to
lower long distance charges by several billion dollars.  To prevent
additional increases in local telephone rates, some $10 billion in
interstate subsidies for local loop costs was shifted to the
interstate access services provided by local telephone companies
to interexchange carriers.  This, and comparable shifts among
intrastate services, gave rise to the concerns over uneconomic
bypass and stimulated the development of access competition. 
  
     Not surprisingly, those most affected by access charges, the
interexchange carriers and large volume users such as big business,
as well as those who see an opportunity for structurally advantaged
competitive entry, such as alternative access providers (ALTs) and
competitive access providers (CAPs) are among those clamoring
loudest in favor of competition for the local phone companies. 
  
     And, thanks to technological advances and regulatory actions
at both the state and federal level, competition in the local
exchange is here and growing.  CAPs and ALTs, often with
significant financial ties to the cable industry, are competing in
the lucrative business market.  Similarly, MCI has recently
announced its intention to enter the access market, and AT&T, which
last year purchased that nation's largest cellular carrier, McCaw,
is similarly poised to provide local competition. 
  
     Merrill Lynch independently documented the effect of this
competition when it reported to its clients following the expanded
interconnection and switched access ruling the FCC made this
summer, that 25 percent of the local telephone market was now
subject to competition. 
  
     None of these corporations are truly new entrants deserving
of regulatory protection normally provided to "mom and pop"
operations or small businesses.  Quite the contrary, the
competitors to local phone companies are actually large,
well-financed firms that are siphoning off enormous revenues that
would otherwise go to supporting universal service. 
  
     Since competitors do not have universal service obligations,
they are free to enter only the high volume business markets. 
Since they do not have to serve all customers and do not have to
support residential rates with revenues from business accounts,
they can undercut the local phone company and still earn sizable
profits.  And they can do all of this while service a relatively
small portion of the total market, and they can do it with the
local company still involved, hence the famous 99 percent market
share figure. 
  
     For example, in California 1.7 percent of the state's land
area produces 49 percent of the business calling revenues.  Six and
one- half percent of the land area produces 90 percent of the
business calling revenue. 
  
     California is not a unique example.  In New York state, one
percent of the land area produces 54 percent of the business
calling revenue.  Ten percent of the land area produces 90 percent
of the business calling revenue. 
  
     Nationwide, the stakes of this competition are enormous.  Last
July, Calvin Monson, who helped design the pro-competitive
telecommunication policies recently instituted in Illinois while
he was Director of Communications Policy at the Illinois ICC, and
Jeffrey Rohlfs of Strategic Policy Research documented a $20
billion annual support embedded in telephone company rates which
is used to maintain universal service.  The Monson/Rohlfs study
concluded that if local phone companies lost this revenue to
competition, residential rates would, on average, double. 
  
     A separate study by BellCore last summer corroborated the
magnitude of contribution to universal service when it indicated
that LEC-provided interexchange access and toll services
contributed more that $18 billion to maintain universal service.
  
     Two points must be made in summary.  First, CAPs are free to
focus on large business customers and urban markets where traffic
is concentrated and costs are low.  The LEC services against which
the CAPs compete have been artificially overpriced and
geographically price averaged to meet public policy obligations to
support universal service.  Bottom line, the current contribution
to universal service will be lost, either through the loss of those
services that provide support or through repricing such services
to meet competition unless a new, competitively neutral funding
mechanism is established.   
     Similarly, while competition will primarily emerge in high
density affluent urban markets, there are some urban areas and vast
rural areas that are a long way from being financially attractive.
And if competition does come to these rural areas, it will likely
only target profitable business segments of the market.  If a small
rural telephone company loses its franchise to serve the profitable
military base or university to a CAP, who will have the obligation
to serve the remote resident on the mountain top?  Stripped of
supports provided by the current utility model, customers in these
areas, and the companies that serve them, will be under increasing
financial strain.   
     Second, the amount of money cited in the studies refers to
maintaining universal service as it is today, and there is an
ongoing debate about expanding the definition of universal service. 
While USTA members are second to none in their desire to provide
state-of- the-art telecommunications to all, if there is to be an
expansion in universal service obligation, someone, somewhere must
pay for it.  And when LECs are transformed from utilities into
competitors, you lose many of the alternatives for financing we
have used in the past.   
     Does H.R. 3636 need to be changed to assure universal service? 
 
     Yes. 
  
     While USTA supports the general director of H.R. 3636, we want
to continue to work with Representatives Market, Fields, Boucher,
and others to perfect the bill.  First, we believe that the
legislation needs specific language which would enable local phone
companies to adjust their rates for a competitive market. 
  
     We have already established that universal service is
inherently tied to the issue of rates.  We also have established
that rates are currently set using a utility model in which some
rates (e.g. long distance access) are kept artificially high to
subsidize lower rural and residential rates to assure universal
service. 
  
     Since the legislation eliminates all entry barriers to local
exchange and access competition, a system must be put in place to
preserve universal service in a competitive environment.  The
legislation does this. 
  
     At the same time, however, rates which were set under a
utility system must be adjusted to reflect the new competitive
environment. The legislation omits any treatment of this equally
important issue.   
     The legislation directs the FCC to promote access to advanced
telecommunications by including advanced telecommunications
services in the definition of universal service while maintaining
affordable rates. 
  
     USTA supports the notion of providing all Americans with
access to advanced services.  But the key term is "access".  Not
all customers will want to travel the information highway. 
  
     If service can be defined as "universal" and hence available
at subsidized rates, you automatically choke off much of the
incentive to roll out advanced services.  Moreover, you run the
risk of dramatically increasing the size of the subsidy pool and
further drain investment. 
  
     We suggest a simple two-word amendment clarifying that it is
access to advanced services that the Congress wishes to assure.  

     Third, and in a similar vein, we have grave concerns regarding
the open platform.  To begin with, we are not sure what it means.
Does ISDN satisfy the definition?  Is full motion video included? 
If so, why is Section 653 requiring a basic video platform needed? 
More specifically, we are concerned that this is an indirect way
to impose a universal service obligation to deliver broadband
services without determining who will pay for it. 
  
     To mandate that local exchange carriers, and only local
exchange carriers, must fund the deployment of advanced universal
services at below cost prices is unreasonable and violates Vice
President Gore's first principle governing the Administration's
support for National Information Infrastructure, namely the need
to "encourage private investment". 
  
     We noted, with some amusement, that one of our newest
competitors, MCI intimated at NTIA's first hearing on universal
service that the local exchange industry was engaged in a 
surreptitious plot to enhance the definition of universal service. 
 
     They were, of course, quite incorrect.  We agree with Vice
President Gore's statement that the definition should "evolve as
the technology and infrastructure advance". 
  
     We believe that the marketplace will provide the best
indication of which services consumers truly want and need. 
Consumers certainly need to have access to advanced services, but
the market is the best determinant of precisely what service is
worthy of being deemed essential.  When the determination is made,
support programs should be implemented to assure that all Americans
have access. 
  
     Rather, there should be clear, explicit support given to a
provider of last resort to build the necessary and agreed to
infrastructure.  There should also be appropriate supports modeled
on our current lifeline and link up programs for companies serving
low income consumers so that they may have access to the advanced
services provided by the infrastructure. 
  
     Last, but by no means least, we urge the Subcommittee to
include the provisions of H.R. 1504 in the Boucher/Fields Bill on
infrastructure sharing (H.R. 3636).  This bill requires local
exchange companies with economies of scale and scope t share their
infrastructure with LECs that do not have such economies.  The bill
has been co-sponsored by a majority of this Subcommittee, and an
identical bill was introduced last Congress by then Senator Gore
and gathered fifty-two Senators as co-sponsors.  We urge its
inclusion in the final bill. 
  
     We have already established that certain rural areas are
simply not competitively attractive.  The most efficient way to
bring the benefits of enhanced infrastructure to the populations
being served by the nation's smaller local phone companies is to
enact infrastructure sharing so that the customers of small
telephone companies also have access to the advanced network
services. 
  
                                 END 
  
  

 


From mech  Mon Mar 14 19:40:01 1994
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Date: Mon, 14 Mar 1994 19:40:01 -0500
From: Stanton McCandlish <mech>
Message-Id: <199403150040.TAA29264@eff.org>
To: mech
Subject: Mark Cooper - Consumer Federation of America
Status: O




                    CONSUMER FEDERATION OF AMERICA
 
          H.R. 3636 NATIONAL COMMUNICATIONS COMPETITION

                               AND

             INFORMATION INFRASTRUCTURE ACT OF 1993

                               AND

             H.R. 3626 ANTITRUST REFORM ACT OF 1993
  
                THE U.S. HOUSE OF REPRESENTATIVES

               SUBCOMMITTEE ON TELECOMMUNICATIONS

                               AND

            FINANCE COMMITTEE ON ENERGY AND COMMERCE
 
                      THURSDAY, FEBRUARY 3, 1994
 
     DR. MARK N. COOPER:  Mr. Chairman and Members of the
Committee, my name is Dr. Mark N. Cooper.  I am Director of
Research for the Consumer Federation of America (CFA).  CFA is the
nation's largest consumer advocacy organization, composed of over
250 state and local groups with some 50 million members.
 
     CFA has been extremely active on telecommunications matters,
having participated in virtually every federal regulatory and
legislative proceeding dealing with regulatory structures since
divestiture.  It has provided support to local groups in
telecommunications matters in states as diverse as Arkansas,
California, Colorado, Georgia, Maryland, Missouri, New York
Oklahoma, Vermont and Texas, and has prepared extensive empirical
analyses of the current status of the telecommunications network
 
     My testimony today is organized around twenty principles that
we believe must be followed in order to provide basic service and
protect consumers in the information age.  While twenty principles
may sound like a lot, they are actually rather modest for two
reasons.
  
     First, most of the economic and regulatory ideas underlying
these principles are simple and have been in place during the past
half century in which this nation has made such dramatic progress
toward universal service.
 
     Second, the information industries we are talking about today
may be both the highways of economic commerce in the twenty-first
century and the marketplace of political ideas.  The decisions we
make about how to organize and direct the economic and political
potential of those industries may go a long way toward determining
the nature of our economic well-being and political freedom in the
information age.
  
     Therefore, Congress must not shrink from the task of
establishing a comprehensive and clear set of principles to ensure
that the public interest will be served. The legislation before
this Committee and the policy statements presented in recent days
indicate we are moving in the right direction, but there is a great
deal of work yet to be done. For example, H.R. 3636 introduces the
concept of an open platform, but needs to require the tariffing of
such services to insure widespread availability.
 
     It establishes a cost allocation rule for the open platform
which mandates "reasonable rates based on the reasonably identified
costs of providing such services, utilizing existing facilities to
the maximum extent feasible and economically practicable." 
Reasonable rates driven by proper cost allocation and efficient
network utilization are sound concepts that should be applied to
all services, not just the open platform.
 
     H.R. 3626 outlines effective structural separations for
electronic publishing, but fails to give similar protections to may
other segments  of the information age that need those protections
even more.
 
     It requires review by the anti-trust authority and the expert
agencies, but is leaves serious loopholes in the standards for
review that it sets and fails to give the states a role in the
process. 
 
     The Administration has proposed a sound policy on in region
buy- outs.
 
     It has also begun to recognize the important role that the
states must play in managing the transition to a competitive local
market and preserving universal service.
 
     We believe that the Congress should establish fundamental
principles to govern the information industries and apply them
uniformly across all segments of those industries.  Given the topic
of today's hearing, I will focus on the first ten of our twenty
principles.  These define the two aspects of universal service _
mechanisms to achieve universality and the definition of service. 
I have submitted documents for inclusion in the record which
outline all of our recommendations. We look forward to working with
the Committee to ensure that all the principles are included in any
rewrite of the Communication Act.
 
     In 1934, when the Communications Act first articulated the
goal of Universal Service, tow-thirds of all American households
did not have a telephone; in 1980, before divestiture, more than
eleven- twelfths had telephone service.  We went from 35 percent
of households with telephones to over 90 percent by adhering to a
simple commitment _ to make available, so far as possible, to all
people in the United States rapid, efficient, nationwide and
worldwide wire and radio communication service with adequate
facilities at reasonable charges. We must not abandon the
commitment to populist pricing that has served us so well.
 
     Universal Service depends on a fundamental commitment to
affordable pricing based on just and reasonable rates for all
households.  Affordability based on just and reasonable rates must
be the first goal of national communications policy.  Reasonable
rates yield fair profits for companies and ensure that ratepayers
enjoy the benefits of technological progress.  We follow this
general principle with a specific cost allocation approach _ a user
pays principle.  

     All users of the network should pay for all elements of the
network that they use in proportion to the nature of the demands
that they place on the network.  We believe that  affordability can
only be assured if Congress establishes a direct link between the
expansion of utilization of the network _ the growth of
information, data and video services _ and declining costs for
basic service.  There can be no commercial free riders on the
information super highway.  As the network is filled up with
enhanced and discretionary services, the cost of network access and
plain old telephone service will decline for all people if the link
between use and basic service rates is well-crafted.
  
     The burden of joint and common costs placed on basic access
should be minimized.  As a matter of social policy and in
recognition of the economic value of having more people on the
network (i.e. the network externality), we believe that basic
service should be a low mark-up service.  Local rages presently
bear a disproportionate share of the burden of joint and common
costs, but as new services are added, these costs should be spread
wider.
 
     These first three principles are the backbone of an effective
policy for assuring universal service for the vast majority of
Americans.  However, affordability for the vast majority of
Americans will not fully accomplish the goal of Universal Service;
it never has. In addition, we must have effective policies targeted
to assist those who have never been included in the telephone age
or whose hold on telephone service is tenuous.
 
     Lifeline programs must be expanded and improved.  The
telephone assistance programs instituted since divestiture in 1984
have limited success because only half the states participate and
those that do have defined very narrow programs making it
difficult, if impossible for those who need most to take part in
these programs.
 
     We must have explicit commitments to make the information age
accessible to all citizens, regardless of their functional
abilities. The new information technologies mean that barriers to
access for Americans disabilities can be more easily overcome than
ever before, but only if a commitment is made at the outset.
 
     We must assure that a reasonable level of technology is
available across all geographic areas of the country as the
information age evolves.  While some areas of the country rush
ahead to megabit high speed systems capable of numerous multi-media
applications, there are still hundreds of thousands of households
who remain on multi-party service.  These disparities must not be
allowed to persist in the information age.
 
     Just as universality was defined simply in the Communications
Act and allowed to evolve through well-known principles of legal
and regulatory practice over the past half century, so too should
the definition of service be simple and evolutionary in the
information age.
 
     Basic telecommunications service must include access to
available digital service with full interconnectivity to all
networks at affordable rates, subject to the constraints of
efficiency and affordability.
 
     End-to end digital service is clearly the minimum standard to
support the information age, but Congress should refrain from
picking a technology, or assuming any specific functionality should
be included, willy-nilly, in the definition of universal service. 
Over the past half century, the simple concept of public
convenience and necessity has allowed telephone service to evolve
from operator switched, multi-party service to single party, direct
dial, soon to be digital service.  What is considered basic will
evolve over time. Changes to the definition of basic service should
be based on a combination of demand as reflected by the types of
service consumers actually select and responsible, open decisions
by policy makers.
  
     At a minimum, expanding the concept of basic service must not
raise the price of basic service; in fact, it must be reasonable
likely that it will lower the price of basic service by lowering
costs or increasing revenues.
 
     As long as technological capabilities add true value to basic
service, by improving network efficiency and increasing the
services that consumers demand, then an ever expanding concept of
basic service will be compatible with the goal of increasingly
affordable service. However, the desire to constantly add
functionalities to the network must be disciplined by the principle
of affordability and network efficiency.
 
     It is important to stress that "gee-whiz" high technology
should not be allowed to blur our economic vision.  Whenever anyone
invokes the term "infrastructure," they want us to suspend the
rules of economic reason.  Infrastructure must be subject to rules
of good governance _ competitive bidding, least cost planning,
democratic control and open access _ to ensure that it serves the
public interest.
 
     To be included in basic service, new elements must be
communications services which connect each to all and possess
characteristics of telecommunications public goods.
 
     Because basic service is priced in a manner to promote usage,
there is a tendency to want to include many functionalities in the
concept of basic service.  Policymakers must balance the desire to
enrich basic service with the discipline of controlling cost and
consumer sovereignty (i.e. not forcing people to pay for services
or functionalities they do not want or will not use).
 
     On the other hand, public goods are strong candidates for
inclusion in the concept of basic service.  As the information age
merges a number of industries, it is also crucial to merge the best
aspects of the concepts of public access from the television
industry and common carriage from the telephone industry into a new
concept of telecommunications public interest access in the
information age.
  
     Although policymakers like to talk about the information
superhighway in terms of super classrooms, universally available
public libraries, or electronic town meetings, whenever we hear
businessmen talk about the information superhighway it sounds more
like an electronic arcade.  Movies and games are the principle
product that will be hauled on the superhighway for the foreseeable
future. The reality is that without aggressive public policy, money
will by entertainment, not the information rich classrooms or the
electronic town hall.  Providing socially useful applications
requires direct public policy intervention, not reliance on
corporate philanthropy.
  
     We think that the superhighway is certainly wide enough to
support a generous "bike lane" for the applications that uplift our
intellect, expand our vision and ensure freedom of political
expression.  Those "bike lanes" should be both channels for
programming and functionalities, like the open platform, for
ubiquitous digital interconnectivity.  Moreover, as long as the
cost rule we have advocated is applied, we think there will be more
than enough resources to fund specific applications, where
necessary. 
 
     The needs and preferences of all users must be considered in
open, public forums.  The affordability principle, which links
expanded use to declining costs for basic service will ensure that
the network evolves in a responsible, consumer friendly fashion,
but the decision of what to include in basic service must also
reflect the desires of ratepayers and citizens.
 
     Preserving the role of the states is crucial to ensuring this
democratic process.  While the Communications Act stated the goal,
the vast majority of the heavy lifting in accomplishing universal
service has taken place in the states, where three-quarters of the
costs of telecommunications service are recovered.  Because
conditions differ so dramatically from state-to-state and because
the vast majority of telecommunications costs are local costs, the
states must remain the focal point of defining and funding
universal service, subject to minimum standards set by the national
policy.
 
     For the bulk of the twentieth century, the Communications Act
managed to create a balance between the enthusiasm to deploy new
technology and principles of universal service, good governance,
economic reason, and consumer protection.  If Congress chooses to
amend that Act, it must shoulder the same responsibility.  We look
forward to working with this Committee in fashioning a new mandate
for universal service that extends the accomplishments of the
Communications Act into the twenty-first
century.
 

 


From mech  Mon Mar 14 19:40:38 1994
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Date: Mon, 14 Mar 1994 19:40:38 -0500
From: Stanton McCandlish <mech>
Message-Id: <199403150040.TAA29291@eff.org>
To: mech
Subject: James G. Cullen - Bell Atlantic
Status: RO

             PREPARED TESTIMONY OF JAMES G. CULLEN,
 
               PRESIDENT BELL ATLANTIC CORPORATION

   H.R. 3626 - ANTITRUST AND COMMUNICATIONS REFORM ACT OF 1993
  
   U.S. HOUSE OF REPRESENTATIVES, COMMITTEE ON ENERGY AND

    COMMERCE, SUBCOMMITTEE ON TELECOMMUNICATIONS AND FINANCE
  
                      TUESDAY, FEBRUARY 8, 1994
 
     MR. JAMES G. CULLEN:  Good morning, Mr. Chairman and members
of the Subcommittee.  My name is James G. Cullen, and I am
president of the Bell Atlantic Corporation.  I want to thank you
for giving me the opportunity to testify on this important piece
of legislation.
  
     As I stated last week before the House Judiciary Economic And
Commercial Law Subcommittee, Bell Atlantic supports H.R. 3626 and
applauds the efforts of this Subcommittee to forge a consensus
among many diverse, dynamic and competing industries.
 
     I would like to focus my testimony on the electronic
publishing provisions in H.R. 3626 that establish safeguards for
Bell Company participation in the information services market.
 
     As you may know, Bell Atlantic took a leadership role in
negotiating agreements with the Newspaper Publishers Associations
in both New Jersey and Pennsylvania that govern our company's
future provision of electronic publishing services.
 
     Under the terms of those agreements, if Bell Atlantic provides
electronic publishing services, it would do so through a corporate
affiliate that would be fully separated from the telephone
operating company.  Such an affiliate would not share personnel or
facilities with the telephone operating company, and would be
responsible for its own marketing and operations.
 
     Bell Atlantic would also offer all publishers, including its
own affiliate, the same services on equal terms.These safeguards
ensure both competition and ratepayer protection, and will help
Bell Atlantic and newspaper publishers bring the full benefits of
an advanced telecommunications network to consumers.
 
     Further evidence of our intent to partner with newspaper
publishers is found in our announcement last week that Bell
Atlantic's Video Services Company and Knight-Ridder, Inc., have
agreed to explore ways in which they can work together to deliver
news, information and advertising services to customers of Bell
Atlantic's 'Stargazer' interactive multimedia television service. 
Indeed, several RBOCs have entered into numerous agreements with
newspaper publishers.
  
     We believe these types of alliances will hasten the time when
consumers, students and workers will have the information they want
delivered when they want it, where they want it and in the way they
want it.
 
     With working agreements in place and partnerships underway
with the newspaper publishing industry, and a U.S. Court of Appeals
ruling that there is no substantial possibility that we can impede
competition in the information services market, Bell Atlantic
actually sees no need for the separate subsidiary requirements
included in H.R. 3626.  However, we do not believe those
requirements will prevent us from continuing to operate efficiently
and effectively, and we will not oppose their inclusion in the
bill.
 
     Likewise, we see no need to establish a "waiting period"
before Bell Atlantic can provide traditional alarm monitoring
services or develop innovative new approaches dealing with personal
security over the new Information Superhighway.  However, again,
in the spirit of compromise, we will not oppose their inclusion in
the bill.
  
     But as I testified last week, there is one void in H.R. 3626
that will most definitely impede our ability to be an efficient
provider of electronic publishing services.  That void deals with
"incidental" long distance services.
 
     Bell Atlantic agrees with the Administration's suggestion that
would allow a Bell company to provide incidental long distance
services in connection with provision of information services.  Let
me explain why.
 
     The provision of information services often relies on the use
of expensive computer equipment.  To provide these services
efficiently, we would use these computer servers for more than just
one local calling area.  (As a hypothetical example, it might be
possible to serve the entire state of Pennsylvania with a computer
server located in Pittsburgh.)
 
     Today, such efficient usage is actually prohibited by the AT&T
consent decree.  In the case of Pennsylvania, although one server
could serve the entire state, the consent decree would require us
to deploy five such servers to serve the state.
 
     The incidental relief we seek would enable a company like Bell
Atlantic to expand accessible and affordable information services
to rural and urban areas, crossing all socio-economic boundaries,
both inside and outside of its tradition serving area.
 
     To begin to deliver these services now, we will need immediate
"incidental" long distance relief for information services.  Making
it immediate, rather than subject to additional rulemakings and
procedures, will give added life, indeed a needed push, to
electronic publishing partnerships as consumers across the country
gain additional exposure to news and information from around the
globe.
  
     In summary, Mr. Chairman, let me emphasize to you, as I did
to Chairman Brooks last week, that the RBOCs support H.R. 3626 and
will work vigorously for its enactment.
 
     No, it is not the bill we would have written, but as nearly
everyone has come to recognize, a very delicate balance has been
struck by Chairman Dingell and Chairman Brooks.  A balance, that
I can tell you from first-hand experience, was not easily reached
with respect to electronic publishing.  A transition period for the
mature newspaper industry is provided, and just as importantly, a
sunset provision is also in the bill.
 
     To close, let me thank you for allowing me to be here today.
This bill, with immediate "incidental" long distance information
services relief, will ensure that electronic publishing has a real
chance to become a key industry in developingour country's
Information Superhighway.
 
                                 END


 


From mech  Mon Mar 14 19:42:02 1994
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Date: Mon, 14 Mar 1994 19:42:01 -0500
From: Stanton McCandlish <mech>
Message-Id: <199403150042.TAA29364@eff.org>
To: mech
Subject: Anne K. Bingaman - Asst. Attorney General
Status: RO

			STATEMENT OF  

     	   	   ANNE K. BINGAMAN 

     ASSISTANT ATTORNEY GENERAL ANTITRUST DIVISION 

     			BEFORE THE 

     SUBCOMMITTEE ON TELECOMMUNICATIONS AND FINANCE 

	     COMMITTEE ON ENERGY AND COMMERCE 

	     U. S. HOUSE OF REPRESENTATIVES 

		     CONCERNING 

          NATIONAL COMMUNICATIONS COMPETITION AND 

	     INFORMATION INFRASTRUCTURE ACT 

		       H.R 3636 

		         AND 

	       THE ANTITRUST REFORM ACT  

  		   H.R. 3626 

	     PRESENTED ON JANUARY 27, 1994  
 

 
Mr. Chairman and Members of the Subcommittee: 
 
     I am pleased to be here today to testify on behalf of the
Administration on two important legislative initiatives: H.R. 3626
and H.R. 3636. Given my role in enforcing the nation's antitrust
laws, I will focus my remarks on those portions of the bills that
relate to competition in the telecommunications business,
especially issues arising in connection with the Modification of
Final Judgment (MPJ) that governs the actions of AT&T and the
Regional Bell Operating Companies (RBOCs). The other members of
this panel, Reed Hundt, Chairman of the Federal Communications
Commission, and Larry Irving, Assistant Secretary of Commerce, will
concetrate on other portions of these bills. 
     The Administration is gratefu to Chairman Edward Markey and
Rep. Jack Fields, authors of H.R. 3636, and Chairman Jack Brooks
and John Dingell, authors of H.R. 3626, for their hard work in
crafting legislation that will clearly help accelerate the
telecommunications evolution and the completion of the National
Information Infrastructure (NII). We look forward to working with
this Subcommittee to move a comprehensive telecommunications reform
package, including both legislative proposals which this
Subcommittee has asked us to comment on today, quickly through the
Congress. 
     The job of building the NII - or more specifically,
infrastructure that will permit broadband, interactive
communication between all members of our society - has been aptly
compared to the building of the nation's interstate highway system. 
Like the construction of the highway system, the construction of
the NII will create hundreds of thousands of jobs. And just as
roads have enhanced this nation's productivity and living
standards, the completion of the NII will make firms and
individuals more productive.  The NII will also enhance the quality
of our lives by creating new ways to educate adults and children,
improve our health care, give us better and cheaper ways of buying
products and services,and entertain us at home. 
     There is a key dJfference, however, between the nation's roads
and its information infrastructure. Our roads have been built by
government. Our NII is being built by private enterprise. 
     But that does not mean that government has no role in
promoting the development of the NII. To the contrary, just as in
any other sector of the economy, government is needed to set and
enforce rules of fair play. 
     In a word, government is needed to ensure competition where
technologically and economically feasible. For it is only through
vigorous competition in all phases of the telecommunications
business _ in the construction of the various information highways
and their access roads, wired or wireless; in the operation of
those highways; and in the provision of content over the highways
that the nation can be assured of having the highest quality
telecommnications service at the lowest cost. 
     Each bill on which I am commenting today assigns a central
role to competition. H.R. 3636 aims to pave the way for more
competition in both local telephone and cable service by stripping
away regulations that impede the development of at least "two
wires" to the home and opening the telephone companies' "local
loop" to full and fair competition.  Meanwhile, H.R. 3626 seeks to
enhance competition to long-distance telephone services and in the
development and manufacture of telecommunications equipment. The
Administration's legislative package, outlined by the Vice
President's speech on January 11, 1994, seeks the same objectives,
but also provides a new, streamlined regulatory regime for
telecommunications providers of the future - digital, interactive,
broadband communications. 
     All of this activity signals to us that a consensus has
emerged in favor of moving telecommunications policy out of the
courts and into the statute books so that Congress, representing
the public, can establish the far-reaching and comprehensive
framework for govening the telecommunications world of the future
that the nation deserves. The Administration is eager to work with
the members of this Subcommittee and with the entire Congress to
bring about this result. 
     In the balance of my testimony, I would like to do the
following: 
     _To put the discussion we are having today in a useful
framework, by explaining how we got here and, in particular, how
the nation has benefitted from the competition in
telecommunications markets that has occurred thus far; 
     _To suggest why providing even greater competition in key
segments of the telecommnications business _ notably, local and
long-distance telephone services, and multichannel video services
(cable and satellite) -is critically important for American
consumers and industry; 
     _To identiiy the fundamental challenges policymakers face in
providing greater competition; and 
     _To discuss the valuable foundation constructed by H.R. 3626
and H.R. 3636 to address these challenges. 
 
The Origins Of The Current Telecommnications Revolution 
     The telecommunications revolution - the merging of voice,
video and other data transmission and the proliferation of new
telecommunications products and services - has been one of
America's leading technologicai and economic success stories. At
bottom, the key reason is that our scientists, engineers and
businesses have developed and introduced telecommunications
technologies at a faster pace than anywhere else in the world. 
     Public policies that have promoted competition have been
critical to this result. Perhaps nowhere is this more evident than
in the case of telephone services, where through the efforts over
two decades of the Justice Department and Judge Harold Greene,
competition has become the central organizing principle of the
industry. 
     Until the Department sued and evtntually broke up AT&T, that
company had a monopoly over this nation's telephone market. It was
a regulated monopoly, to be sure. But it was also one that thwarted
competition and innovation.  New companies like MCI that wanted to
provide long-distance service could not do so because AT&T's local
operating companies refused to provide interconnections to their
local loops. Similarly, other manufacturers of telephone equipment
wanted to sell equally, if not more, innovative products but were
frustrated by AT&T from doing so because of the telephone company's
incentives and ability, through its monopoly con-rot of the local
loop, to buy such equipment only from its wholly owned subsidiary,
Western Electric. 
     These practices were ended when the Department of Justice led
by my antitrust law professor in law school, William Baxter,
obtained a consent decree in 1982. A Modification of Final Judgment
(MFJ) has since been administered with remarkable energy and wisdom
by Judge Greene, to whom this nation owes enormous gratitude. 
     By unleashing competition in various segments of the telephone
industry, the MFJ has delivered the benefits that competition in
other markets routinely guarantees; innovation, better products and
services, greater efficiency, and lower prices. Consider that since
the MFJ: 
     _interstate long distance prices for residential customers in
real  terms (adjusted for inflation) have fallen by more than 30%
without compromising universal service; 
     _there has been a virtual explosion in the types of telephones
and services that consumers can choose from; 
     _competition has stimulated the development of hundreds of
innovative voice and data services (such as call waiting and voice
mail); 
     _spurred by MCI and Sprint, all major long-distance providers
(including AT&T) now have laid fiber optic cable throughout much
of the country and the have already built much of the backbone for
the NII; and 
     _competition in the telephone equipment market has opened
whole new markets and spawned the development and sale of new
products. 
     In short, the MFJ has enabled the United States to maintain
its technological leadership in telecommunications. Nations that
have stuck to the old monopoly model of telephone services have
fallen behind. That is why many are now trying to emulate as,
rather than the other way around. 
     Competition has been less well advanced in video serviees. To
be sure, consumers, have now an unprecedented degree of choice in
video programming, due to tbe widespread introduction of cable
technology. But, with a few exceptions, cable television operators
have monopoly franchises. 
     Yet here too technology is proving that the current video
monopolies are far from "natural." A number of Regional Bell
Operating Companies (RBOCs) have announced plans for upgrading
their telephone networks to deliver video progrmming. And
continuing advances in satellite television promise the delivery
of even more television channels to consumers than are now
available over cable. 
     Finally, there is hope that technology innovation ultimately
will erode the monopoly that the MFJ, by itself, could not end the
lock that the local monopolies of the Bell System, the Bell
Operating Company (BOCs), still have on local telephone service
(carrying more than 99% of local traffic in their service areas).
Just as telephone networks can be upgraded to provide video
service, cable television systems are expected relatively soon to
carry telephone traffic. In addition, while expensive, cellular and
specialized mobile radio services - which can transmit calls
through the air rather than by wire - are growing rapidly
throughout the country. Shortly, the FCC will auction off
additional spectrum of Personal Communications Services (PCS), yet
another form of wireless communication. Still, it is important to
keep in mind that these alternatives are largely prospective; they
are not yet widely available and affordable today, and it is not
yet clear when they will be. 
 
The Need For And Benefits of Even Greater Competition 
 
     Hopefully, technological advances already here or on the
horizon will bring even greater competition to telecommunications
markets. In particular, technology could soon make possible
interactive, digital communications over broadband fiber or coaxial
networks (and perhaps through the air as well), which should
unleash the full promise of the NII. As Larry Irving will explain
in greater detail, the Administration wants to encourage the rapid
development and introduction of these networks by creating a new,
simplified regulatory framework for those who provide them. 
     But there is still a need for policymakers to encourage
greater competition in existing telecommunications markets, which
both H.R. 3626 and H.R. 3636 well recognize. 
     Cable television and local telephone service are the most
obvious markets where more competition is necessary. Both are
currently monopolized by existing providers, prompting government
regulation to protect consumers from excessive rates. Yet even
though the technological advances I have just mentioned may make
it possible for competition to erode these monopolies and thus end
or relax current regulation, government regulations still inhibit
this competition. In particular, existing law frustrates providers
of cable and local telephone services from offering both services,
in full competition with each other in the same service
territories. 
     Second, while several competitors certainly have made
significant inroads in long distance telephone markets, there is
room for more competition. AT&T still has about 60% of
long-distance traffic. 
     Third, while telephone equipment is now probably the most
competitive of the three markets affected by the MFJ, this market
also could use additional competition.  Here, too, AT&T continues
to be a major force, although it faces stiff competition from
numerous other providers, domestic and foreign.  Given their
expertise in the industry, some or all of the RBOCs may be natural
entrants into developing and manufacturing telecommunications
equipment, especially network switching, but are precluded from
entry by the MFJ. Under the right terms and conditions, entry by
the RBOCs into these activities could help spur innovation and
bring down prices for telecommunications equipment. In the process,
the RBOCs could help enhance the competitiveness of American firms
in the international telecommunications equipment market. 
 
Policy Challenges Ahead 
     The key challenge now for all telecommunication policymakers
_ in Congress, in the Executive branch, and the states - therefore
could not be clearer: To encourage greater competition in all
facets of the telecommunications industry in a way that does not
distort the marketplace or pose dangers to consumers.  In
particular, as long as the RBOCs have a monopoly over phone
service, they _ as did AT&T _ will continue to have incentives, and
the ability, to cross-subsidize and discriminate. 
     Ultimately, effective competition in local telephone markets
will provide the best protection against cross-subsidization and
discrimination by the RBOCs, since without market power RBOCs will
be unable to leverage their local telephone monopolies into other
markets. However, until local telephone markets are competitive,
entry tests an/or structural safeguards that allow for objective
analyses by regulators of pricing, cross-subsidization, and
discrimination are important means available to ensure that local
telephone customers are not charged with the costs of long-distance
service and manufacturing and that markets are not distorted by
unfair and cross-subsidized pricing. 
     In addition, policymakers should encourage added competition
to cable television from other firms and technologies, which will
reduce the market power that existing cable operators maintain in
their markets througout the country. Statutory and regulatory
restrictions that prevent such competition therefore should be
removed. 
 
The Important Contributions of H.R.3636 
     H.R. 3636 is a major step forward toward meeting an important
challenge outlined above: enhancing competition in markets
monopolized by existing firms. Among other things, this legislation
would clear the way for cable and telephone companies to compete
vigorously against each other in the same markets. In addition, the
legislation aims to open up local telephone markets by prempting
existing local and state restrictions against entry while requiring
the RBOCs to "unbundle" their services. In the process, RBOCs would
be compelled to provide interconnection to other firms that want
to use the "local loop" to provide local telephone services and to
provide digital "open platform" service to enable subscribers to
access multimedia information services. 
     The Administration strongly supports those provisions of H.R.
3636 that seek to open the local loop, and we believe that the
RBOCs should be required to unbundle and fairly price each element
of their local monopoly services at technologically and
economically feasible points. Such disaggregated unbundling,
coupled with fair pricing, is a critical precondition for
establishing truly effective competition in the local telephone
market. Structural safeguards for the local loop should also be
considered. 
     The Administration also strongly endorses the provisions in
H.R. 3636 that would permit existing cable and telephone companies
to offer both video and telephonic services in the same geographic
areas. The Administration also endorses the general thrust of the
provisions in the legislation that prohibit telephone and cable
television companies from acquiring each other within the same
service territory. It is crucial that public policy promote
competition between methods for delivering telecommunications
vices. 
     For this reason, the Administration believes that any
exceptions to this general merger pprohibition should be narrowly
limited only to acquisition within rural areas where two wires may
be economically infeasible. In addition, our proposal would permit
the FCC to relax the general prohihition after five years if such
action would not harm competition. The Department of Justice would
also have the authority thereafter to challenge any cable-telco
merger within the telco' service region (and elsewhere) as
inconsistent with the antitrust laws. 
     We believe it is important that the Congress adopt a flat ban
on "within region" cable telco mergers (subject to the rural
exception) for at least five years so that there is absolutely no
uncertainty in the private sector about the policy of promoting the
construction of the second wire. 
The Important Contributions of H.R. 36262 
     H.R. 3626 addresses a second key policy objective I have
mentioned: specifying the conditions under which the RBOCs, which
now have monopoly power in local telephone service, can provide
added competition in long-distance telephone service without using
their monopoly leverage to distort cornpetition in either or both
the local and long-distance markets. Like its companion bill
authored by Chairman Markey and Rep. Fields, the bill introduced
by Chairmen Brooks and Dingell represents a major step forward in
constructing an appropriately competitive environment in the
telecommunications industry.] 
     In particular, H.R. 3626 retains entry tests, administered by
DOJ and the FCC, for RBOCs to enter long-distance (should they pass
the tests) after minimum waiting periods (18 months for reselling
and five years for facilities-based service out of region). H.R.
3626 also would permit the RBOCs to develop and manufacture
equipment not earlier than one year after enactment unless DOJ
objects and prevails in court. 
     The Administration supports the thrust of these provisions of
H.R. 3626: 
     _While the nation owes deep gratitude to Judge Greene for his
enormous efforts in administering the MFJ, the rapid pace of
technological change suggests that the time has come to do what
H.R. 3626 would accomplish: move telecommunications policy out of
the courtroom and into the hands of the two expert agencies charged
with protecting the broad public interest in telecommunications
(FCC) and competition (DOJ, which helped launch the
telecommunications revolution with its suit against AT&T); 
     _The Administration endorses competition-based entry tests
requiring the approval of the DOJ and FCC before the RBOCs may
provide long-distance service as a key safeguard. 
     _The Administration suggest building on the concept in H.R.
3626 of allowing RBOC entry into certain limited portions of
long-distance service that are "incidental" to the provision of
other services. Specifically, the Administration would permit the
RBOCs to offer long-distance to facilitate the provision of
wireless, cable and certain other services that were not subjects
of the AT&T lawsuit. 
     _The Administration supports RBOC entry into manufacturing,
safeguarded by the requirement that such activities be carried out
in a fully separate affiliate, as H.R. 3626 would mandate. We also
support the provisions in H.R. 3626 providing for a
notification-and waiting-period procedure prior to entry, which
would preserve the right of the DOJ to investigate, and if
necessary, sue and enjoin the proposed entry. 
 
Conclusion 
 
     In the end, the Administration shares the belief of sponsors
of both H.R. 3626 and H.R. 3636 that the legal framework governing
the telecommunications industry should promote as broad a degree
of competition in all phases of the business as possible, with many
viable competitors providing products and services, on a level
playing field for all.  While removing existing legal barriers to
entry in various markets is essential and may appear to promote
competition, truly effective competition requires a truly level
playing field, where no competitor is able use its monopoly or
market power in one market, such as local telephone services to
disadvantage competition in other markets. Ultimately, it is
competition, not regulation, that will provide the best guarantee
of promoting new products, lower prices, employment, expanded
export opportunities, and innovation in the telecommunications
industry. 
     The Administration looks forward to working with the Congress
to provide the fair and competitive environment for the
telecommunications industry that its participants and consumers
deserve.  Both H.R. 3626 and H.R. 3636 will be essential components
of the telccommunications reform package that will ensure this

 


From mech  Mon Mar 14 19:42:33 1994
Received: from localhost (mech@localhost) by eff.org (8.6.4/8.6.4) id TAA29376 for mech; Mon, 14 Mar 1994 19:42:31 -0500
Date: Mon, 14 Mar 1994 19:42:31 -0500
From: Stanton McCandlish <mech>
Message-Id: <199403150042.TAA29376@eff.org>
To: mech
Subject: Larry Irving - Asst. Secretary for Communications & Information
Status: RO

                   TESTIMONY OF LARRY IRVING 

     ASSISTANT SECRETARY FOR COMMUNICATIONS AND INFORMATION
 
                  U.S. DEPARTMENT OF COMMERCE 
 
                               ON
 
             TELECOMMUNICATIONS REFORM LEGISLATION 
 
    BEFORE THE SUBCOMMITTEE ON TELECOMMUNICATIONS AND FINANCE
 
                COMMITTEE ON ENERGY AND COMMERCE 

                    HOUSE OF REPRESENTATIVES 
 
                        JANUARY 27, 1994 
 
 
Mr. Chairman and Members of the Subcommittee: 
 
  
INTRODUCTION 

     Good morning.  Thank you for this opportunity to testify
before you today on issues related to the development of a national
telecommunications and information infrastructure _ and,
specifically, on Administration legislative proposals to promote
the advancement of this infrastructure in a procompetitive manner
that benefits all Americans.  I am pleased to join Assistant
Attorney General Bingaman, who will focus on the Administration's
reform proposals bearing on the AT&T consent decree.  I will
discuss more generally the changes in the competitive landscape
that make the passage of telecommunications legislation this year
a top Administration priority, and, in the context of that
discussion, highlight the key elements of the Administration's
proposals.
 
     Vice President Gore and Secretary Brown unveiled the
Administration's National Information Infrastructure (NII)
initiative in September of last year, setting forth an agenda for
a public-private partnership to help bring about this revolution. 
This includes support for innovative applications that will use the
NII, improving access to government information, protecting
individual privacy and intellectual property rights, and the
passage of telecommunications legislation _ the subject of today's
hearing.
 
     Before proceeding further, let me underscore, Mr. Chairman,
the profound debt of gratitude the Administration owes you and
Congressman Fields and other Members of this Subcommittee for
seizing the initiative in developing H.R. 3636.  Our proposals for
reform of telecommunications regulations, particularly the
telephone-cable television company crossownership restriction,
interconnection and equal access requirements, local
telecommunications service competition, and universal service
requirements, substantially build upon your trail-blazing,
bipartisan work product.  The Administration also wishes to salute
the creative bipartisan legislative initiative to revamp the AT&T
Consent Decree undertaken by Chairmen Dingell and Brooks.  The
thoughtful legislative initiatives undertaken by Senators Hollings,
Inouye, and Danforth, among others, also merit recognition.  We
have closely studied all these proposals and they have influenced
our thinking as we developed an Administration legislative
initiative.  Aspects of our set of legislative proposals, which I
will touch on today, also build in large part upon the foundation
they have established.  The Administration looks forward to working
closely with Congress to arrive at a final telecommunications
legislative product this year. 

     In working with Congress, the Administration will seek 
to ensure that a complete, integrated telecommunications set of
reform proposals moves forward.  The meritorious reform ideas
embodied in different bills currently before Congress complement
each other.  A comprehensive, far-reaching overhaul of our
telecommunications regulatory system is badly needed.  Failure to
take such an approach could also, perversely, distort competition
between firms most affected by regulatory changes and other firms
whose operations largely escaped regulatory revamping.  The
Administration will consult and cooperate closely with Congress to
ensure that an integrated legislative approach succeeds. 

 
     THE NEED FOR LEGISLATION
 
     There is a national consensus that an advanced information
infrastructure will transform everyday life for every person in the
United States in the near future.  We have all heard of countless
examples of how broadband, interactive communications will connect
and empower all people in this country.  Vice President Al Gore
recently said that the word "revolution" by no means overstates the
changes ahead.
   
     The newspapers bring us daily examples of the ways in which
the development of the NII will revolutionize American life.
   
-    The January 19 Washington Post reported how interactive
dial-up computer network services allowed individuals to
communicate with friends and relatives in the Los Angeles area
immediately after last week's disastrous earthquake, and to spread
vital news to other interested subscribers within a matter of
minutes.
   
-    On January 19, Secretary of Health and Human Resources Shalala
announced a contract that will provide by the end of this decade
for the electronic payment of nearly all of the $1 billion annual
Medicare bills.
   
-    InterPractice Systems, a joint venture of Harvard Community
Health Plan in Boston and Electronic Data Systems, has placed
terminals in the homes of heavy users of health care, such as the
elderly, pregnant women, and families with young children, so that
these users can access health care information 24 hours a day in
a form that aids decision making.   
 
-    The Texas Education Network serves over 25,000 educators and
is making the resources of the Internet available to classrooms,
so that students in small school districts can access NASA and
leave messages for the astronauts, browse around in libraries
larger than they will ever be able to visit, and discuss world
ecology with students in countries around the world, among other
things.
   
     These and countless other examples attest to the rapid rate
at which the American public is entering the information age.
  
     It would be a mistake, however, simply to "let nature take its
course" and allow change to proceed under the existing legal
regime, whose underlying structure was established 60 years ago. 
This is true for three essential reasons.
  
     First, in an increasingly competitive world trade environment
_ which will become even more open with the implementation of NAFTA
and the GATT Uruguay Round _ we simply must ensure that our
telecommunications capabilities remain the best in the world. 
Because information transmission increasingly is the life's blood
of all our industries, archaic rules that inappropriately retard
innovation by telecommunications firms have a negative impact on
the international competitiveness of the private sector in general
by inhibiting industrial productivity and job creation. 
Legislation that lifts these outdated structures will enhance
competitiveness and spur the creation of good new jobs.
 
     Second, the existing regulatory structure has been altered on
an ad hoc basis over six decades to meet perceived problems of the
moment.  This has created an uneven playing field that artificially
favors some competitors over others, and that in some instances
unnecessarily discourages investment and risk-taking.  These
effects, in turn, inappropriately skew the growth of industry
sectors and retard the development of the NII itself.  Accordingly,
legislation is needed to eliminate these unwarranted regulatory
disparities.
 
     Third, we need to be sure that our telecommunications policies
are fully responsive to the needs of the American people as a
whole, and, in particular, poorer and disadvantaged Americans.  As
Secretary Brown stressed on January 5, we cannot "become a nation
in which the new information age acts as a barrier, rather than a
pathway, between Americans" _ a nation divided between the
information rich and the information poor.  Yet, while the
universal provision of "plain old telephone service" has long been
a national goal, the existing regulatory structure may not be
sufficient to ensure that all Americans benefit from the broader
range of information services that will become available under the
NII.  Accordingly, legislative reform is urgently needed to address
this shortcoming.  I will have more to say about the
Administration's views on universal service below. 

 
     THE ADMINISTRATION'S PROPOSALS 

     The Administration, as promised last fall, has prepared a set
of legislative proposals setting forth the principles under which
we believe the advanced infrastructure should operate.  As I have
already indicated, these proposals further the visions set forth
in House and Senate legislative initiatives.  We are also building
upon innovative regulatory reforms and other dramatic steps taken
by various states, and we intend to work closely with the states
in promoting an advanced telecommunications and information
infrastructure.  Together we can encourage competition,
infrastructure modernization, and advanced NII applications in
health care, education, and government services.
 
     Underlying the Administration's set of proposals are five
fundamental principles that Vice President Gore and Secretary Brown
have outlined.  These principles are:
 
-    Encouraging private investment in the NII; 
-    Promoting and protecting competition; 
-    Providing open access to the NII by consumers and service
providers; 
-    Preserving and advancing universal service to avoid creating
a society of information "haves" and "have nots";  
-    Ensuring flexibility so that the newly-adopted regulatory
framework can keep pace with the rapid technological and market
changes that pervade the telecommunications and information
industries. 
 

     ENCOURAGING PRIVATE INVESTMENT AND PROMOTING COMPETITION 

     The Administration believes it is time to act decisively to
lift the artificial regulatory boundaries that separate
telecommunications and information industries and markets.
 
     Those clear, stable boundaries served us well in the past. 
They enabled regulators to establish separate regulatory regimes
for firms in different industries.  They also prompted regulators
to address the threat of anticompetitive conduct on the part of
some telecommunications firms by barring them from certain
industries and markets.
   
     Technological and market changes are now blurring these
boundaries beyond recognition, if not erasing them entirely.  As
Vice President Gore emphasized on January 11, we are moving away
from a world where technologically valid regulatory distinctions
may be made among local telephone, long distance telephone, cable,
and other purveyors of information transmission.  Digital
technology enables virtually all types of information, including
voice, video, and data, to be represented and transmitted as "bits"
_ the ones and zeros of computer code.  Thus, rules which
artificially distinguish among different types of "bit
transmitters" based on old historical understandings will no longer
serve a socially useful purpose.  Accordingly, regulatory change
is necessary to fully realize the benefits of private investment
and greater competition in the information infrastructure. 
Regulatory policies predicated on the old boundaries can harm
consumers by impeding competition and discouraging private
investment in networks and services.  The Administration is
therefore committed to removing unnecessary and artificial barriers
to participation by private firms in all communications markets,
while making sure that consumers remain protected and
interconnected.  These reforms are necessary in order for people
in the United States to "win" the information revolution as soon
as possible.
 
     To this end, the Administration supports the initiation by the
Federal Communications Commission (FCC) of a review of current
broadcast policies.  Broadcasters remain the principal source of
free, universally available electronic information in the United
States, and it is important to ensure full participation by that
industry in the NII. 
 

     CABLE TELEVISION-TELEPHONE COMPANY CROSS-OWNERSHIP 

     The Administration strongly supports most of the major
provisions on telephone-cable television company crossownership in
H.R. 3636.  Mr. Chairman, you, Mr. Fields, and other cosponsors of
this bill are to be commended for your insightful,
carefully-crafted approach to the telephone-cable crossownership
issue.  While the Administration's initiative in this area does
differ in certain respects from H.R. 3636, it is in line with the
overall philosophy and general approach outlined in H.R. 3636.
 
     The Administration supports repeal of the current cable
television-telephone company cross-ownership restriction in the
1984 Cable Act.  We believe that telephone companies should be
allowed to provide video services in their local exchange areas,
subject to effective safeguards to protect consumers and
competition.  The Administration is proposing two critical
safeguards.
 
     First, consistent with the approach of H.R. 3636, telephone
companies will be required to make channel capacity available to
unaffiliated video program providers on a nondiscriminatory basis,
while providing video programming through separate affiliates. 
This requirement should create market opportunities for competing
providers of video services, thereby reducing prices and expanding
the diversity of programming and services available to television
viewers. 

     Second, the Administration proposes to prohibit telephone
companies from acquiring cable systems located in the companies'
local exchange areas for at least five years.  This will deter
premature and potentially anticompetitive mergers between telephone
companies and their most likely competitors, existing cable
companies.  The Administration proposal allows fewer exemptions of
telephone company buyouts of cable firms than H.R. 3636.  However,
telephone companies operating in rural areas will be exempted,
because these markets may be unable to support more than one
carrier.  
 
     The need for this second safeguard may wane in the coming
years as markets change, so the Administration has added to it a
flexible element.  We propose to authorize the FCC to begin
proceedings that could allow such acquisitions five years after the
date of legislative enactment, if certain conditions, to be
established by the Commission, are met.  An example of such a
condition might be the presence of sufficient competition in the
telephone company's service area in the delivery of telephone or
cable services. 
  
     Of course, any telephone company/cable system acquisition
would be subject to the antitrust laws in the same manner as an
acquisition in any other industry.
 
     The Administration's proposals on the "video platform" are
similar to those in H.R. 3636, except that the Administration's
proposal makes clear that the platform will be subject to all
requirements of Title II, not simply the requirement that rates be
nondiscriminatory, as H.R. 3636 appears to contemplate.  The
Administration proposal also requires a carrier to afford
nondiscriminatory access to the video platform whenever it offers
video programming. 
  

     LOCAL TELECOMMUNICATIONS SERVICES 

     The Administration's proposals regarding local competition in
telecommunications services bear much similarity to H.R. 3636.  The
Administration owes a debt of gratitude to the framers of H.R. 3636
for their creative and thoughtful approach to these issues.  The
most notable difference is that the Administration's approach
identifies general obligations and leaves to the FCC (and in some
cases, the states) the task of prescribing details.
  
     The Administration supports removal of those barriers
preventing competition in the provision of local telecommunications
services.  Competition has already generated substantial benefits
for consumers in a host of communications and information service
markets.  For example, the varieties of customer premises equipment
have expanded dramatically since deregulation.  In addition, the
price of interstate long distance telephone service for the average
residential user has declined more than fifty percent in real terms
since 1984, due to competition and regulatory reform.  At the same
time, the infrastructure used to provide long distance services has
been substantially upgraded.  There are now four digital,
fiber-based national networks serving the United States, and many
more interconnected regional networks.  Consumers will realize
similar benefits in service innovation, declining prices, and
infrastructure enhancement from the expansion of competition in the
local telephone service market.  Such competition will reduce the
ability of any telephone company to harm competition and consumers
through monopoly control and will encourage investment and
innovation in the "on and off ramps" of the NII.
  
     The early history of local telephone service demonstrates the
benefits of such competition.  The Bell Company originally marketed
telephone service as a high priced business service that, with few
exceptions, was not offered outside of major cities or to
residential customers.  When competitors were able to enter local
services markets after the Bell Company's patents expired in
1893-1894, a large number of entrepreneurs began offering telephone
service, first in areas unserved by Bell and then in direct
competition with the Bell system.  Bell responded by rapidly
building out its own system, and soon in most major cities
consumers and businesses had a choice of telephone companies.  In
1906, 57 percent of the communities with more than 5,000 people
were served by two or more local telephone companies.  By 1907,
non-Bell companies served more than half _ 51 percent _ of the
telephone customers in the country.  During this period, prices for
services fell dramatically, while at the same time "infrastructure"
investment soared.   

     In 1920, at the close of the "first" competitive era, there
were some 13.4 million telephones in the United States, or one
telephone for every eight of the nation's 105.7 million people. 
At the rate the number of telephones was growing prior to
competition, there would have been fewer than one million
telephones in the United States by 1920.  Moreover, 55 percent of
all telephone subscribers were residential customers, and more than
30 percent of all farm households had telephones.  Thus,
competition proved to be a powerful engine in serving what we now
call universal service goals _ that is, making advanced
telecommunications technology widely available to the American
people at affordable prices.  Unfortunately, competing systems were
not interconnected, leading to public dissatisfaction eventually
addressed by government establishment of franchised monopolies for
telephone service.  Had government intervened instead by
establishing interconnection obligations among competing carriers,
we might have had local competition for the last 100 years.  The
Administration's local competition proposal I am about to describe
demonstrates that we have learned from this historical lesson.
 
     Current policies regarding interconnection, service bundling,
and specific barriers erected by individual states inhibit
competition _ and the low prices, service choices, and other
benefits such competition brings to consumers.  The Administration
proposes to ensure that competing providers have the opportunity
to interconnect their networks to local telephone company
facilities on reasonable, nondiscriminatory terms.  Local telephone
companies will also be required to unbundle their service offerings
whenever technically feasible and economically reasonable, so that
alternative providers can offer similar services using a
combination of, for example, telephone company-provided switching
and their own transmission facilities.  Finally, in order to ensure
a consistent, procompetitive environment for telecommunications
services, the Administration proposes to preempt state entry
barriers and rate regulation of new entrants and other providers
found by the FCC to lack market power. 

     Competition in local telecommunications markets should
generally lower prices and increase innovation in the services
offered users.  Nevertheless, we are aware of concerns that
repricing of some local services may result in rate increases in
some cases in an increasingly competitive environment. 
Accordingly, in order to guard against any possible "rate shock"
for users, the FCC and state regulators will be directed, in
implementing network interconnection and unbundling, to prevent
undue rate increases for any class or group of ratepayers.  
 
          MODIFIED FINAL JUDGMENT (MFJ) RESTRICTIONS 
     The Modified Final Judgment (MFJ) in the AT&T Consent Decree
helped unleash an era of competition and innovation that brought
low prices and new service choices for consumers.  In short, it has
been a tremendous success.  The Administration acknowledges the
great public service the judiciary has performed in overseeing the
breakup of that monopoly.  But twelve years have passed since the
basic framework of the MFJ was established, and it has been over
ten years since the breakup took place.  Technologies and markets
are changing rapidly.  A judicial decree may at some point soon
become a barrier to a more comprehensive, far-reaching approach to
an advanced information infrastructure.
   
     Reform of the MFJ goes hand-in-glove with opening up local
competition, which I described above.  The development of
full-fledged competition in local telecommunications services will
alleviate the competitive concerns that prompted the strictures
placed by the MFJ on the activities of the Regional Bell Operating
Companies (RBOCs).  Thus, comprehensive legislative procedures for
loosening the MFJ restrictions as competition develops are
appropriate.  Implementation of these procedures in the wake of
enhanced local competition will allow the RBOCs to compete in
markets for goods and services now closed to them.  This will
further enhance innovation in the American economy and benefit
consumers.
 
     Assistant Attorney General Bingaman will address the MFJ
reform provisions.  I wish to note, however, that while Assistant
Attorney General Bingaman will describe the Administration's
position, the Departments of Commerce and Justice have worked
together closely in developing the Administration's position in
this area.  This position represents not only the joint efforts of
our two Departments, but also the work of others in the
Administration who have joined in this policy initiative. 

 
     OPEN ACCESS AND PROGRAMMING DIVERSITY 

     The public benefits of the information revolution would be
severely diminished without a wide range of diverse programming. 
An advanced information infrastructure, to be truly useful, must
offer a potpourri of educational material, health information, home
and business services, entertainment, and other programming matter,
both passive and interactive.  Barriers to open access and
widespread availability of programming serve only to harm users.

     The Administration's set of legislative proposals would
further the goals of promoting a diversity of programming and open
access to distribution of this programming.  Specifically, the
Administration proposes that the FCC, one year after enactment,
promulgate rules that would establish nondiscriminatory access
obligations on cable television systems, except when technology,
costs, and market conditions make it inappropriate.   

 
     ENSURING REGULATORY FLEXIBILITY AND FAIRNESS 
     As barriers to an advanced information infrastructure fall,
the regulatory regime must adapt to the changing environment.  In
the rapidly changing telecommunications and information industries,
the only certainty is uncertainty.  A new regulatory framework is
required that will stand the test of time, without the need for
continual upheaval in the nation's overall approach to
telecommunications and information policy.  At the same time,
similarly situated services should be subject to the same
regulatory requirements.
   
     In order to advance these principles, the Administration
proposes to allow the FCC to reduce regulation for
telecommunications carriers that lack market power.  This so-called
"forbearance" authority will ensure that unnecessary government
regulation _ however well-intentioned _ does not harm users of the
infrastructure, or impede competitive entry, investment, and the
introduction of new services. 
 

     TITLE VII SERVICES 

     A new kind of communications service provider will soon
emerge, one that offers broadband, interactive, switched, digital
transmission services to homes, offices, schools, hospitals, and
other places.  Firms offering these services face the potential of
being regulated under two different parts of the Communications Act
_ Title II, which regulates common carriers, and Title VI, which
regulates cable communications.  These firms could also be subject
to regulation at the state level for the intrastate component of
their Title II services and at the local level for their Title VI
services.  This will create a needlessly overlapping and complex
regulatory environment.
 
     The nation needs a flexible, adaptable regulatory regime that
encourages the competitive provision of the broadband, interactive,
switched, digital transmission services that will enable the
American people to enjoy the full benefits of the information age. 
The Administration therefore proposes a new Title VII to the
Communications Act that will encourage firms to provide these
services.
 
     The Administration's proposal will provide the FCC with broad
regulatory flexibility while maintaining key public policy goals,
including open access, interconnection, and interoperability
requirements, and obligations to support universal service.  Rate
regulation of Title VII services would occur only when the FCC
finds that a firm has market power in offering those services. 
State regulation of the intrastate components of such services
would be subject to varying degrees of federal oversight, depending
on the service. 
  
     Firms would elect to be regulated under the new framework,
provided that they meet threshold criteria established by the
legislation.  The FCC would be authorized to tailor regulation of
Title VII firms in light of changing competitive conditions. 

 
     UNIVERSAL SERVICE
 
     A revolution is not complete without extending its benefits
to everyone.  "Universal service," that is, the widespread
availability of basic telephone service at affordable rates, has
been a bedrock principle of U.S. telecommunications policy for many
years, and helped provide equal opportunities for all people in the
United States to communicate.  This principle should be expanded
to the advanced infrastructure of the future.  
 
     The Administration is committed to developing a new concept
of universal service that will serve the information needs of the
American people in the 21st century.  Indeed, the full potential
of the NII will not be realized unless all Americans who desire it
have easy, affordable access to advanced communications and
information services, regardless of income, disability, or
location.  In a January 5 speech, Secretary Brown challenged the
private sector "to expand universal service to the National
Information Infrastructure."  He pointed out that promotion of
universal service advances American competitiveness, stating: 
"Just as progressive businesses have increasingly recognized that
their fate is tied to education and good schools, so the businesses
that will take advantage of the new information marketplace must
realize that our national future is dependent on our national
competitiveness _ on ensuring that no talent goes to waste." 
  
     In crafting its universal service provisions, the
Administration was greatly inspired by _ and borrowed in large part
from _ the approach to universal service taken by H.R. 3636.  Mr.
Chairman, once again, the Administration is indebted to the
outstanding work by you, Mr. Fields, and the cosponsors of H.R.
3636 in developing a universal service concept for the new
information age.
 
     The Administration recognizes that crafting a new, meaningful,
and practical definition of universal service will require
flexibility, foresight, and the balancing of diverse interests. 
Given these circumstances, our set of legislative proposals will
establish several overarching guidelines and charge the expert
agencies _ the FCC and the state regulatory commissions _ with
establishing the details.
   
     Specifically, the Administration proposes to:
 
-    Make the preservation and advancement of "universal service"
an explicit objective of the Communications Act.  The concept,
which has evolved over time, is not specifically described in the
Act.  The "universal service" goal should be codified in order to
provide the FCC and the states with a sound legal basis to address
these issues as they apply to advanced telecommunications services.
 
-    Charge the FCC and the states with continuing responsibility
to review the definition of universal service to meet changing
technological, economic, and societal circumstances.
 
-    Establish a Federal/State Joint Board to make recommendations
concerning FCC and state action on the fundamental elements of
universal service.  In its deliberations, the Joint Board must
gather input from non-governmental organizations.
 
-    Oblige those who provide telecommunications services to
contribute to the preservation and advancement of universal
service.  However, the FCC, in consultation with the states, would
be authorized to permit "sliding scale" contributions (for example,
to avoid burdening small providers and new entrants), or "in-kind"
contributions in lieu of cash payments.
 
     In addition, it is an Administration goal that, by the year
2000, all of the classrooms, libraries, hospitals, and clinics in
the United States will be connected to the NII.  To help attain
that goal, the Administration proposes that the National
Telecommunications and Information Administration of the U.S.
Department of Commerce conduct an annual nation-wide survey of the
availability of advanced telecommunications services to those
locations and report on its findings.  Moreover, the Administration
proposes that the FCC be directed to commence an inquiry and,
subsequently, a rulemaking proceeding to ensure, to the extent
feasible, the availability of advanced telecommunications to school
classrooms, health care institutions, and libraries.  The FCC would
consider the tariffing of preferential rates for interstate
services to such locations, and ensure that standards are in place
to permit uniform interconnection to the NII. 

     Implementation of new universal service policies for the
information age is of profound public policy significance.  It will
empower individuals and thereby complement the Administration's
efforts to advance health care, educational, and welfare reform. 
For example, it will enable disabled people and members of poor
families to obtain health care or job training information that
enhances the quality of their daily lives.  It will give students
in remote rural areas the ability to "attend" classes interactively
in distant locations that they cannot access today, thus better
preparing them for higher education _ and for the jobs of the
future.  It will allow rural health care providers to render better
service to their patients through consultations with specialists
at research hospitals.  It will allow welfare recipients to consult
more frequently with social service agencies and be made aware of
educational or training opportunities that can prepare them for
steady jobs.  It will enrich the lives of shut-ins by providing
them with a wider variety of news and cultural programming.  It
will, in short, contribute to the public welfare by affording large
groups of citizens new opportunities to realize the American dream.

     As the examples outlined above suggest, the new universal
service for the information age will help advance the
Administration's goals of health, welfare, and education reform by
enabling chronically disadvantaged individuals to improve their
quality of health care and education.  In short, an expanded
universal service concept for the information age complements the
Administration's broad domestic policy goals.
 
     The Administration's universal service proposal adopts a broad
framework of general principles, leaving specific implementation
details to the FCC, to permit governmental flexibility in this
rapidly changing industry.  It does include provisions that bear
similarity to H.R. 3636, such as use of a Joint Board and requiring
contributions from service providers.  The Administration also
includes FCC consultation with the Department of Commerce on
universal service, which, as I have said, is a high priority for
the Administration.
 
     NTIA is working proactively to advance the universal service
agenda by holding hearings in a variety of locations on the
desirable scope and attributes of new universal service offerings. 
An initial hearing was held on December 16 in New Mexico.  A Los
Angeles hearing scheduled for January 20 was postponed due to the
earthquake and will be held in February.  Other hearings will be
held over the coming months.  We anticipate that these hearings
will provide valuable information on the universal service needs
of various groups and the means by which universal service goals
can best be advanced.  

 
     CONCLUSION
 
     In conclusion, enactment of telecommunications reform
legislation will promote the development of the NII in a flexible,
procompetitive fashion that creates incentives for desirable
investment, economic growth, and the wide-scale availability to all
Americans of new, highly valued information services.  In
developing its telecommunications reform proposals, the
Administration has benefited from the bipartisan spadework
undertaken by Congress.  The Administration looks forward to close
collaboration with Congress to enact a set of legislative proposals
that achieves these desired ends.  This concludes my testimony. 
I would be pleased to respond to any questions you may have.

 


From mech  Mon Mar 14 19:44:12 1994
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Date: Mon, 14 Mar 1994 19:44:11 -0500
From: Stanton McCandlish <mech>
Message-Id: <199403150044.TAA29427@eff.org>
To: mech
Subject: Reed E. Hundt - Federal Communications Commission
Status: RO

                   Statement of Reed E. Hundt
 
           Chairman Federal Communications Commission 
 
    Before the Subcommittee on Telecommunications and Finance
 
                 Committee on Energy and Finance
 
            United States House of Represenatatives 
 
       H.R. 3636, the National Communications Competition
 
                               and
 
            Information Infrastructure Act of 1993~ 

                               and
  
           H.R. 3626, the Antitrust Reform Act of 1993~
 
                               and the
 
               Communications Reform Act of 1993~ 
 
                        January 27, 1994 
 
 
     Introduction
  
Mr. Chairman and Members of the Subcommittee:
 
          It gives me great pleasure to appear before you today to
testify on H.R. 3636 and H.R. 3626.  As you know, this is my first
appearance before the Subcommittee with jurisdiction over the
Federal Communications Commission ("Commission" or "FCC") and,
indeed, it is my first appearance before any committee of Congress.

I am very gratified that the President nominated me, and the Senate
confirmed me, as chair of the FCC at these very momentous times in
our ongoing communications revolution.
 
     Furthermore, it is a very happy occasion for me, personally,
to appear before the members of this Subcommittee.  SOme of you I
have had the pleasure of knowing for many years; others I have been
honored to meet and confer with in recent days, weeks, and months;
still others I look forward to getting to know shortly. It will be
a remarkable experience to work with all of you.  You should know
that your reputation for wisdom and vision is well-known to me and
the other members of the Commission.  The bills that you have
before you today can only enhance that reputation.
 
     H.R. 3636 and H.R. 3626, if passed, will inaugurate a golden
era of innOvation and growth for what may be the most important
sector of our economy in the next century.  At the same time, these
far-sighted bills portend to guarantee the inclusion of all
Americans in the information economy.  The means to these ends
chosen by the authors of these bills is a commitment to a carefully
monitored and regulated transition from currently noncompetitive
markets to competitive markets.  This crucial transition will
protect consumers from unreasonable prices and limited choices as
competitive markets develop.  The bills together set forth a
flexible and adaptive regulatory model that is likely to promote
substantial investment and lead to economic growth and job
creation.
 
  Mr. Chairman, you and the other authors of the legislation before
you here: including, among others, Chairman Brooks, Chairman
Dingell, Congressmen Fields, Boucher and Oxley, are to be commended
for the visionary nature of these bills.
 
          I am also very encouraged, Mr. Chairman, that both
President Clinton and Vice President Gore have voiced their strong
commitment to the same goals of promoting private investment in the
nation's telecommunications infrastructure while ensuring access
for all.  Tuesday night, in his State of the Union address, the
President called on Congress to pass legislation establishing the
information superhighway this year.  President Clinton stressed
that building out this nation's telecommunications infrastructure
will increase productivity, help us to educate our children,
improve the provision of health care services, and create jobs. 
The President also joined with the Vice President in calling on the
country to meet the goal of connecting every classroom, hospital,
and library to the national information infrastructure by the year
2000. 
      
     Indeed, Mr. Chairman, the President and Vice President share
a common vision with you, Chairman Dingell, Chairman Brooks, and
the other authors of this legislation of the potential benefits
that our national information infrastructure offers and a common
commitment to making those benefits a reality for all Americans.
I applaud that vision and commitment and I am excited by the
challenge that lies before us. 

          We stand on the verge of a transition to a new
competitive world, a world in which the average consumer will be
able to choose among competing suppliers of local, long distance,
video, and wireless telephone services.  In managing that
transition, we in government at the federal and state levels should
seek to promote competition wherever and whenever possible and to
enhance access to competitive markets for consumers and providers
of services and products.  At the same time, we must continue to
exercise regulatory supervision over telecommunications markets
that are not _ or not yet _ competitive in order to replicate, as
nearly as possible, the results that a competitive market would
produce.
 
          There was a time, of course, when everyone thought that
local and long distance telephone service was a natural monopoly
- - that was the assumption of the drafters of the Communications
Act of 1934.  But, over time, thanks to American technological  
inventiveness and the pioneering efforts of entrepreneurs,  
people began to realize that the monopoly might not be so natural
after all. 

          The changes that have occurred in the telephone
manufacturing and sales markets over the past 30 years provide a
vivid illustration of the benefits that the introduction of
competition and the promotion of access can provide to American
consumers.  When I was growing up, the telephone was a black,
rotary dial instrument that was owned by the telephone company and
was considered part of the telephone network.  The first step
toward opening the telephone equipment market was a modest one. In
the 1950's, an entrepreneur developed a small cup-like device that
could be attached to the end of a telephone to provide some measure
of privacy in crowded settings.  From the Hush-a-phone case in the
1950's and the Carterfone case in the 1960's to the adoption of the
FCC's Part 68 registration program in the 1970's, momentum toward
ending the telephone company's monopoly control of the customer
premises equipment ("CPE") market gradually increased until the FCC
deregulated this business and unleashed the forces of competition.

          Today, consumers have a seemingly limitless range of
choices.  They can buy telephones of all shapes, sizes and colors
with a bewildering array of features and functions.  They can buy
telephones with built-in answering machines, telephones with     
memory, telephones with speed dialing, and cordless telephones. 
And yes, you can still buy one of those old, black, rotary dial
telephones.
 
          Equally important, the prices for this equipment have
fallen since deregulation.  As prices declined, sales increased. 
Sales of cordless telephones, for example, increased from
approximately 4 million units in 1985 to 9 million units in 1992. 
It's hardly unusual today for American consumers to have several
telephones in their homes. 

          For businesses, competition in telephone equipment has
meant the ability to purchase their own private branch exchanges,
or PBXs, which enable an office, in effect, to operate its own
internal telephone network and to link remote locations in a single
system.  Competition has also led to the widespread availability
of facsimile terminals.  The purchase of fax machines soared from
137,000 in 1986 to 3.5 million in 1992, while the installed base
of this equipment grew from 300,000 terminals in 1986 to 10.7
million in 1992.  Many, perhaps most, business cards now list both
a telephone number and fax number. And the introduction of fax
machines has resulted in increased usage of the telephone network. 
Consumers now use fax machines not only as a substitute for the
physical delivery of documents, but also instead of voice messages.
Businesses routinely accept new orders by fax instead of relying
on oral communications.     

          Technological advances and entrepreneurial initiative
also led to competition in the long distance market.  As early as
the 1950's, upstart businesses sought to apply new technologies,
such as microwave, to offer an alternative to the telephone
company.  The new entrants faced a difficult task in making
competitive inroads because of AT&T's control over the integrated
public switched network, particularly the bottleneck-local
telephone networks that are needed to originate and terminate long
distance calls.  It was AT&T's efforts to use that control to
hamper competitors in the long distance and equipment markets that
caused the Department of Justice to file an antitrust suit against
AT&T in 1974.  That litigation culminated in 1982 in a consent
decree, known as the Modified Final Judgment ("MFJ"), that led to
the break-up of the old Bell system in 1984.
 
          The divestiture of AT&T was the seminal event in the
development of a truly competitive long distance business and I
believe it was the right approach.  Moreover, since 1984 Judge
Greene has done an able job in enforcing the MFJ to ensure that
providers of long distance service compete on a level playing
field.
 
          During the past 10 years, the Commission has played an
important role in assisting the efforts of the court to increase
competition in long distance.  The FCC, for example, developed and
implemented a system of non-discriminatory access charges 
that permits competing long distance companies to use the local 
telephone network to originate and terminate their long distance
calls.  This system requires the Regional Bell Operating Companies
("RBOCs") and other local exchange carriers to provide access to
the local telephone network on a non-discriminatory basis to all
long distance companies.
 
          The Commission also successfully supervised the
technological changes to the RBOCs' local networks that enabled
consumers to select their carrier for "1+" interstate long distance
service instead of being forced to use the incumbent monopoly
carrier.  Although the MFJ required the RBOCs to offer this "equal
access11 service, the Commission also extended a similar
requirement to non-Bell companies located in markets that competing
long distance providers wished to serve.
 
          The introduction of competition in long distance is a
real success story for the economy and consumers.  Today, there are
approximately 400 interexchange carriers, both facilities-based and
resellers.  Since 1986, the number of carriers serving 45 or more
states has grown from 2 to 9.  The total long distance market has
grown from $38.8 billion in 1984 at the time of divestiture to
$59.4 billion in 1992. 

          More importantly, since divestiture, the price of long
distance service has fallen dramatically.  For example, the price
of a 10 minute daytime call from Chicago to Atlanta, expressed in 
1993 dollars, was $6.28 in 1984; today that same call costs  
only $2.30.
 
          The consumer response to this decline in rates has been
equally dramatic.  In 1985, AT&T carried approximately 133 billion
of the total 167 billion minutes of interstate usage.
Over the next eight years, AT&T's market share steadily declined
from over 80% to 60%, but its traffic volume grew by about 60% to
212 billion minutes and the volumes of its competitors increased
more than four-fold to 138~bi1lion minutes.
 
          These extraordinary increases reflect two of the
principal benefits that competition in the telecommunications
industry has produced over the past decade: declining prices and
increased usage of our telecommunications network.  The more
competitive telecommunications environment has also led to an
expanding array of new choices for consumers.
 
          Consider for a moment the services and products that were
available in 1982 and compare them to today.  In 1982, a long
distance call was an expensive treat - - or it meant something was
wrong.  Today, the same call is likely to cost about half as much,
and friends and relatives living thousands of miles away seem much
closer.  In addition, in 1982 almost no one had a cellular
telephone or a pager.  Today, parents can go to the movies with
peace of mind, knowing that the babysitter can call or page them
in an emergency.     
 
          Economic growth in the telecommunications industry over
the past decade has contributed significantly to improving consumer
welfare in this country and has played an increasingly larger role
in the overall domestic economy.  In 1982, the telecommunications
equipment and services sector generated approximately $94.6 billion
($143 billion in 1993 dollars).  By 1993, that figure had grown to
$171.9 billion.  The growth in the communications and information
sector as a whole over this period also has been impressive.  In
1982, the total sector generated approximately $317 billion; $478
billion in 1993 dollars.  By 1993, the total sector amount had
grown to about $718 billion. 

          The history of the CPE and long distance markets over the
past decade shows that competitive markets serve the interests of
consumers by creating strong economic incentives for product and
service providers to reduce their costs, lower their prices,
promote technological innovation and respond quickly to changing
consumer demand.  The FCC played a critical role in the evolution
of both of these markets by removing regulatory barriers to entry
by new competitors and taking steps to ensure that consumers would
have access to competing service providers.  We now must meet this
challenge of promoting entry and enhancing access in order to open
new markets to competition. 

          Enactment of the legislation would assist the Commission
in managing the transition to more competitive telecommunications
markets by providing the agency with a clear statutory mandate  
to utilize appropriate regulatory tools in accomplishing its
overriding competitive and public interest objectives.  In the
past, litigation over the scope of the Commission's authority to
act in certain areas created uncertainty about the effect of
Commission rulings and diverted resources to litigation that could
have been spent for more productive purposes.  A broad and
unambiguous grant of authority to the agency will remove any doubt
as to the Commission's authority to adopt and enforce rules that
will withstand judicial review.  Moreover, a legislative initiative
could also substantially eliminate the cost of the ongoing
litigation before the MFJ court. 

 
     H.R. 3636 

I.   Local Exchange Competition

 
          Entry 

          I applaud H.R. 3636's objective of promoting competitive
entry into the market for local exchange and exchange access
services.  The local network is almost the only telephone market
today that continues to be dominated by a single provider.  The
advent of new, wireless technologies, such as Personal
Communications Services (PCS), the growing presence of competitive
access providers, and the expanded capabilities of cable systems
create the potential for an effectively competitive     
market for local telephone service (including intraLATA toll 
service).
 
          H.R. 3636 would eliminate governmental barriers to entry
into the local market that would undermine the development of
competition for local services.  The removal of these barriers
should foster the continued development and deployment of advanced,
reliable technologies.  New entrants can be expected to both
utilize and compete with the service offerings of the local
telephone companies.  The introduction of competition for local
services on a broad scale also will create strong incentives for
competing firms to increase the pace of technological innovation,
develop new services, and reduce their cost of providing service.
All of these efforts will contribute to economic growth by
stimulating demand for telephone service.

 
          Safeguards
 
          H.R. 3636 correctly recognizes the need for safeguards
to ensure that new entrants can interconnect their facilities with
the existing local networks.  Although Section 201 of the
Communications Act of 1934, as amended, currently empowers the
Commission to order common carriers to offer interconnection to
other carriers, the bill's explicit treatment of reasonable
nondiscriminatory access and interconnection issues properly
highlights their importance in a world of many facilities-based
telecommunications service providers.  Interconnection and     
interoperability are essential to the full realization of the 
benefits that vigorous competition in the local exchange market can
produce.
 
          H.R. 3636's proposal to require exchange carriers to
offer interconnection at any point that is "technically feasible"
and "economically reasonable" establishes a workable standard for
the FCC to apply in formulating regulations to goyern
interconnection arrangements.  Many of the issues identified in
H.R. 3636 related to unbundling, access, and interconnection,
however, involve considerable technical complexity and implicate
network reliability and integrity concerns.  We would be pleased
to work with the Subcommittee staff in refining and clarifying
these sections of the bill.

 
          Pricing Flexibility
 
          I share the view expressed in M.R. 3636 that
inter-carrier compensation arrangements and pricing flexibility for
non-dominant and, at the appropriate time, formerly dominant
carriers will be critically important to fostering local exchange
competition.
 
          New carriers entering the local market to compete with
incumbent telephone companies need the discretion to package and
price their service offerings so that they are attractive to
potential customers.  By the same token, the incumbent telephone
companies in time will require similar pricing flexibility to 
respond to competitive offerings.  H.R. 3636 grants the Commission 
the discretion necessary to manage this transition. Moreover, the
proposal to require the FCC to establish criteria for pricing
flexibility that would also govern state commission decisions to
grant such flexibility for intrastate rates should facilitate the
introduction of consistent rates and rate structures for interstate
and intrastate services.
 

          Preemption
 
          Another merit of M.R. 3636 is that it would authorize the
FCC to preempt any state regulation of entry or state policies that
restrict the exercise of interconnection or access rights provided
by the bill or the FCC's implementing regulations.  It would be
advisable to extend preempt ion to inconsistent state rate
regulation requirements.  Rate regulation of non-dominant service
providers may hamper their ability to compete effectively with the
incumbent carrier.  By the same token, continued rate regulation
of previously dominant carriers may prevent the local market from
becoming effectively competitive.
 

          Network Planning
 
          Another laudable feature of H.R. 3636 is that it
recognizes the importance of network planning and reliability as
additional service providers interconnect with the existing public
switched network.  The FCC has already adopted significant service
quality and network reliability reporting requirements.  It was
notable that the public switched telephone network withstood the
earthquake in California last week with relatively little
disruption to its switching centers.  As a result, millions of
calls got through, enabling residents to obtain emergency
assistance and console one another.
 
          I also approve of the bill's provisions requiring prompt
licensing and approval of new services, which will ensure the
expeditious deployment of advanced technologies and services. 

 
II.  Universal Service
 
          Enthusiasm for promoting new competitive markets and
encouraging new technologies and services must not distract our
attention from the critical task of ensuring that all Americans
haye access to basic telephone service.  Currently, approximately
94 percent of all American households have telephones.  That is an
impressive, but not completely adequate achievement: almost 6
million households do not have active telephone service.
Furthermore, a disproportionate percentage of households without
active telephone service are low-income, particularly
AfricanAmericans and Hispanics.
 
          The continued deployment of new telecommunications
technologies capable of delivering a wide range of advanced
services will require the FCC and the states to address on an
ongoing, evolving basis whether access to basic dial tone service
should continue to be the only goal of universal service.   
I share the authors' view that it is imperative to redefine the
term "universal service" continually over time, as technology
advances.
 
          Further, because competition in the local exchange market
will increase pressure on current rate structures, H.R. 3636
recognizes the importance of continually monitoring and reacting
to the effects of local competition on the maintenance of universal
service.  The bill proposes that the FCC convene a Joint Board
charged with developing recommendations for preserving universal
service in the emerging world of widespread competition for all
telecommunications services.  Joint Boards in the past have
provided a vehicle for the FCC and the states to work closely to
formulate and administer consistent universal service policies.
 
          In addition to embracing an evolving definition of
universal service, it is also quite appropriate for the bill to
extend the obligation of contributing to universal service to
"[a]ll providers of telecommunications services." This feature of
the bill is fair and crucial to promoting competition and
efficiency. 


 
111. Competition In the Multichannel Video Distribution Market 


          Entry 

          The market for multichannel video distribution is
dominated today by cable television providers.  This market should
be opened to more competition.  The existing prohibition that bars
telephone companies from providing video programming to customers
in their telephone service areas should be repealed.  It is very
appropriate, therefore, that H.R. 3636 would remove this
restriction and allow telephone companies to compete with cable
companies in providing one-way and interactive video services.
 
          Direct, facilities-based competition between cable and
telephone companies will produce substantial benefits for the
American public.  Competition in this market will spur the
deployment of advanced technologies that are capable of delivering
the full range of services that customers demand. These services
include not only entertainment services, but also the growing
number of educational, health, and social services that are
accessible over broadband technologies.
 
          In addition, competition in this market can be expected
to produce the same positive results for consumers that we have
seen in other markets for telecommunications services that have
undergone the transformation from monopoly to competition:
technological and service innovation, lower prices, and
responsiveness to consumer tastes.  Telephone company entry also
will expand the electronic marketplace of ideas by creating new
outlets for video service providers. 

          As you know, Mr. Chairman, the FCC already has taken
steps to enhance competition in the multichannel video distribution
market.  Within a few months, U.S. consumers will be able to
receive programming from a Direct Broadcast Satellite service. This
service is capable of delivering scores of channels of programming
directly to homes and offices equipped with 18-inch dishes.
 
          In 1992, the Commission authorized telephone companies
to offer video dial tone service within their operating territories
through a basic "video platform" that provides non-discriminatory
access to multiple video programmers.  Since these rules were
enacted, four telephone companies have received authorization from
the Commission to construct and operate video dial tone systems for
purposes of testing technology and evaluating consumer demand for
the services offered.
 
          Elimination of the existing cross-ownership restriction
should stimulate new telephone company investment in facilities
that are capable of delivering video and advanced
telecommunications services.  Consumers should be the beneficiaries
of the expanded choices that facilities-based competition in this
market will foster.

 
          Safeguards
 
          Adequate safeguards must be in place to ensure vigorous
and effective competition between telephone companies and cable
companies.  In a report to Congress in 1992 that recommended 
removal of the prohibition against telephone company entry  
into video programming, the FCC cautioned that certain restrictions
might be necessary to prevent potential anticompetitive practices,
including possibly a requirement that a telephone company provide
video programming to end users through a separate affiliate.  H.R.
3636 would impose this restriction as an initial requirement and
I support that approach.
 
          The bill also would require a carrier to make available
up to 75 percent of its capacity to unaffiliated video programmers
upon request.  I share the authors' concern that unaffiliated video
programmers must have adequate access to the video platform to
ensure delivery of their video programs and services.  I also agree
that the Commission should monitor closely the impact of this
requirement during the first two years after enactment. Given the
pace of change, it might be appropriate to give the Commission the
authority to modify the reserve requirement if an investigation
shows that it is no longer in the public interest. Generally, the
Commission should have the discretion needed to adjust its policies
to achieve the overall goal of promoting competition.  Similarly,
while I support the bill's proposal to require the FCC to examine
whether cable systems should be required to provide
non-discriminatory access to a video platform (just as telephone
companies would be required to do), the FCC might be given the
authority to adopt such a requirement, if its investigation shows
that such enhanced access to cable systems would be in the public
interest.
 
          Mr. Chairman, I would like to offer one other suggestion
before turning to H.R. 3626.  The removal of barriers to entry into
the local telephone market and the video distribution market as
proposed by H.R. 3636 likely will accelerate the trend toward
convergence of the markets for all telecommunications services.
This trend suggests that, over time, traditional regulatory
distinctions between telephone and cable companies will become
increasingly blurred and outdated.  It also suggests that serious
consideration should be given to a third regulatory paradigm, one
that would permit the FCC to regulate these emerging diversified
service providers under a single, integrated system, rather than
partially under Title II and partially under Title VI.  As I will
discuss later in my testimony, the Administration has suggested a
possible third regulatory model to address the emergence of this
new type of service provider.
 
          In general, we should aspire not to impose unnecessary
or duplicative regulations that increase consumer rates and hinder
the development of fully competitive markets for telephony and
video services.  I hope this Subcommittee, therefore, will consider
granting the Commission the regulatory flexibility necessary to
permit it to refrain from imposing obligations that would
undermine, rather than foster, the continued development of     
competitive markets for telephone and video services. The
Commission's exercise of its limited existingforbearance authority
under Title II has produced substantial benefits - - the permissive
detariffing policy contributed to the development of a competitive
long distance market and more recently to the emergence of
competition for access services. Moreover, Congress last year
recognized the importance of broad forbearance authority in
facilitating the emergence of competitive telecommunications
markets when it granted the Commission the discretion to forbear
from imposing on commercial mobile service providers any Title II
requirements except those contained in Sections 201
(non-discrimination), 202 (just and reasonable rates) and 208
(resort to complaint process). 

 
     H.R. 3626
 
          The MFJ prohibited the RBOCs from engaging in certain
telecommunications businesses, most notably the provision of
interLATA interexchange services, information services, and the
manufacturing of telecommunications equipment.  These restrictions
were imposed as part of the settlement of the Justice Department's
antitrust suit against AT&T in order to preclude the RBOCs from
using their local exchange monopoly to obtain market power in
other, related markets.  The court subsequently revised the MFJ to
eliminate the information services restriction, but the interThATA
service and manufacturing prohibitions remain. 

          Since the divestiture of AT&T in 1984, the structure of
the interexchange and equipment markets has changed substantially.
Although AT&T continues to control by far the largest share of the
interexchange market, there are now hundreds of domestic
interexchange carriers.  Further, over the past decade MCI and
Sprint have become established nationwide competitors. Competition
in the telecommunications equipment market also increased during
this period, as the RBOCs and other exchange carriers substantially
increased their purchases of switching and other equipment from
non-AT&T suppliers.  Moreover, the development of effective
competition in the local telephone market, as contemplated by H.R.
3636, would limit the incentive and ability of the RBOCs to engage
in cross-subsidization.
 
          In light of the changes over the past 10 years, I agree
with the authors of H.R. 3626 that the time has come to develop a
plan for lifting the remaining MFJ line-of-business restrictions
and returning primary responsibility for regulating the practices
of the RBOCs to the FCC.  I also agree with the authors of this
bill that any plan for removing these restrictions must provide
adequate safeguards to preclude the RBOCs from using their existing
market power in the local exchange to undermine competition in the
markets they seek to enter.     

 
I.   RBOC entry into Interexchange Services
 
          I support the objective of allowing the RBOCs, over time
and subject to appropriate safeguards, to provide interexchange
services.  With their capital resources and technical expertise,
the RBOCs would be formidable competitors for AT&T, MCI and Sprint.

Consumers of long distance services would be the principal
beneficiaries of increased competition in this market.
 
          I am also pleased that the bill would permit the RBOCs
to apply immediately for authorization to provide interexchange
services that are "incidental" to other telecommunications services
that they are already permitted to provide.  In the past, the
interexchange prohibition has forced the RBOCs to incur unnecessary
costs in upgrading their networks in order to avoid routing
signalling information across bkTA boundaries.
 
          H.R. 3626 properly directs the Commission to apply a
public interest standard in determining whether to permit the RBOCs
to enter the interexchange services market.  This broad standard
requires the Commission to assess a wide variety of relevant
factors in making its determination, including the need for
additional regulatory safeguards. 

 
II.  RBOC Entry into Manufacturing
 
          I also support H.R. 3626's objective of permitting the
RBOCs to engage in the manufacturing and provision of network 
equipment, and the manufacturing of CPE, subject to effective  
and appropriate safeguards.  RBOC entry into these markets can
enhance competition, promote continued technological innovation in
CPE and other equipment and foster lower prices.  Further, their
direct involvement in the research and development area should
facilitate the production of equipment that is suited to each
company's requirements and improve network reliability. Entry of
the RBOCs into manufacturing, subject to appropriate safeguards,
should benef it?' both consumers in the equipment market as well
as the U.S. economy generally.  From telephones, to fax machines,
to wireless cellular telephones and pagers, telecommunications
equipment has become a ubiquitous presence in our lives.  Consumers
throughout the United States, residential and business, urban and
rural, would gain from the additional competition that the RBOCs
could provide in these markets.  The additional economic activity
spurred by their entry should benefit the economy as a whole.
 
          Our experience with long distance telephone services and
CPE has shown the tangible benefits to the economy and consumers
that arise with more competitive markets.  I believe consumers will
realize similar benefits in telecommunications equipment markets
with the passage of this legislation.
 
          As product and geographic markets develop and change,
however, it may be necessary for the FCC to adopt regulatory 
safeguards that will protect consumers and competitors against 
anticompetitive practices without hampering the ability of the
RBOCs to compete.  Generally, I believe that it would be wise to
confer upon the Commission appropriate regulatory tools to
accomplish the legislative goals of safeguarding competition and
consumers.  I believe that the Commission can and should be able
to meet these goals under changing economic circumstances by
flexible implementation of both structural and non-structural
safeguards.
 
          Because the RBOCs currently are permitted to provide
(although not manufacture) CPE, the Commission has enacted
regulations designed to reduce the ability of the RBOCs to engage
in anticompetitive practices in this market.  The Commission's Part
68 rules govern the compatibility standards between the network and
CPE.  The "no harm to the network" standard for compatibility has
contributed significantly to making the CPE market robustly
competitive.  In addition, the Commission has imposed a series of
nonstructural safeguards to protect against discrimination and
cross-subsidization.  Specifically, the Commission has adopted
unbundling, network disclosure, and nondiscrimination reporting
requirements on the BOCs as well as comprehensive accounting
regulations.
 
          The significant competition already present in current
telecommunications equipment markets provides an additional  
safeguard to discipline the behavior of the RBOCs.  As competition 
among communications equipment suppliers continues to evolve into
a global market, the potential of the RBOCs to cause
anticompetitive harm will diminish as well. 
 

                    Other Legislative Initiatives
 
     Mr. Chairman, as you know, the Administration has released a
White Paper concerning its proposals for reform of the
Communications Act.  Although many of the proposals described in
the paper appear to be patterned after provisions in H.R. 3636, I
would like to comment briefly on three new initiatives.
 
          The Administration plans to amend the Communications Act
to add a new Title VII, which would apply, on an elective basis,
to providers of two-way, broadband, digital, transmission services,
offered on a switched basis.  In contrast to the disparate
regulatory treatment of local exchange carriers and cable
television operators under Titles II and VI, respectively, Title
VII would establish a uniform regulatory scheme applicable to all
service providers that meet the statutory requirement.  The
creation of this third regulatory model is intended to encourage
private investment in new technology and foster the widespread
availability of advanced telecommunications services.
 
          I believe, Mr. Chairman, that the Administration has
presented an innovative approach that raises important,      
provocative questions.  In principle, we should be supportive  
of initiatives that create incentives for new, efficient investment
in advanced telecommunications facilities.  Further, as I mentioned
earlier, the growing trend toward convergence suggests that
alternatives to the current Title II and Title VI regimes should
be explored.  It is important, also, that Title VII would not
repeal either Title II or Title VI of the Communications Act. If
a firm providing Title VII broadband services also furnished
transmission services over other facilities, the rates, terms and
conditions applicable to the latter services would continue to be
governed by Title II or VI.
 
          The Administration should be applauded for developing a
regulatory model that is designed to address the growing
convergence in the communications industry.  It is an exciting and
timely idea and I look forward to obtaining more detailed
information regarding its implementation.
 
          The Administration also proposes to direct the Commission
to adopt regulations that would require cable operators to offer
non-discriminatory access to channel capacity on their systems for
unaffiliated video programmers, except where technology, costs and
market conditions make such offerings inappropriate. This proposal
represents an important step toward establishing regulatory parity
between exchange carriers and cable television systems in the
multichannel video distribution market.  Under H.R. 3636, exchange
carriers that wish to offer video programming to customers in their
telephone service territory would be required to offer
non-discriminatory access to unaffiliated video programmers through
a video platform.  Cable television operators currently do not have
a comparable obligation.  The Administration's proposal would
further the goals of promoting competition and enhancing access by
creating a new outlet for video programmers in local markets.
 
          Finally, Mr. Chairman, the Administration proposes to
take the initiative to help fulfill the goal set by the President
in the State of the Union address and the Vice President in his
speech in Los Angeles on January 11 to connect every classroom,
hospital and library to the information superhighway by the year
2000.  The White Paper indicates that, as part of that effort, the
Commission will be asked to commence an inquiry and subsequently
a rulemaking proceeding to ensure that access to advanced
telecommunications services are accessible to these vital social
institutions.  The Commission welcomes this -responsibility and we
are prepared to commit the resources necessary to initiate and
complete these proceedings promptly. 
 

     Conclusion 

          Mr. Chairman, as your hearings continue, I will commit
the very able staff of the Commission to the task of commenting
and pursuing the topics raised by the members of your Subcommittee
and the witnesses.  Our experts will be available to consult with
members of the Subcommittee or their staffs. 

          I thank you, again, Mr. Chairman, for the opportunity to
appear before this Subcommittee and testify about these important
bills.  I also look forward to working with you, the full Committee
Chairman and the other members of the Subcommittee as the
legislative process moves ahead.  I would be happy to answer any

 


