Content on the Fly: The Growing Need for Regulation of Video Content Delivered via Cellular Telephony

摘要

Technological advancements in the last twenty years have substantially altered the ways in which people work, communicate, and are entertained. Many of these advancements have occurred in areas generally thought to fall under the regulatory purview of the Federal Communications Commission (FCC). These advancements have included the personal computer, the internet, digital cable, direct broadcast satellites (DBS), and cellular phones. Of all these increasingly available and inexpensive technologies, perhaps the most ubiquitous is the cellular phone. Thus far, the FCC has struggled to apply its public interest mandate to the ever shifting sands of technological development with varying degrees of success. Cellular phone regulation however has proven relatively simple and free from first amendment challenges as it has mostly included simple interconnectivity regulation, and the monitoring of the cell phone’s impact on competition. The era of straightforward cellular regulation may soon be coming to an end as the cellular industry continues its transition to broadband speeds, and richer content.Over the course of 2005 and continuing through 2006 the major cellular operators have begun upgrading their systems to new third generation (3G) technology. This technology allows for connection speeds far exceeding the older second generation networks. These speeds have permitted the development of new video services such as Cingular Wireless’s CV service, or Verizon’s V-Cast. The scheduled advanced wireless services (AWS) auction on June 29, 2006 is likely to only speed the development of these new faster networks.A transition to 3G cellular service will mean that cellular phones will have ceased being mere communication devices and will have taken on many of the characteristics of the richer content technologies like cable, the internet, and DBS. The sheer pervasiveness of cellular phones - they appear in restaurants, on public streets, in movie theatres, and in every other imaginable locale - means that there will almost certainly be a call to Congress and the FCC to regulate the content of the video delivered. What form is FCC regulation of 3G cellular content likely to take? What rationales are likely to be advanced for these regulations? Firstly, to answer these questions, it is necessary to look at what form content regulation has taken in other technological contexts, and at the rationales offered to support those regulations. Secondly, it is necessary to speculate as to the shape that 3G technologies are likely to take so that they can be properly analogized to established regulated technologies. The scope of this paper does not include a discussion of whether the rationales for content regulation are logical or a discussion about the Constitutional validity of content regulation. An analysis of the Constitutional validity of each of the possible regulatory approaches is, at a minimum, owed its own paper. Rather, this paper focuses on a proposed regulatory regime for 3G cellular content.