Once the dust settles around the Telecommunications Act of 1996, what we'll be left with is a subsidy program for ravenous lawyers. Congress, which has more than its fair share of failed or otherwise "reformed" attorneys, has shown it still knows how to take care of its own. From the A-word to the V-chip, the Telecommunications Act has already turned into a lawyer's sweetest dream and a taxpayer's worst nightmare.
The first legal salvo, fired before the presidential ink was dry, centered on the Communications Decency Act (CDA), which prohibits providing "indecent" material to minors over the Internet. Anyone who does, according to the CDA, can end up with two years in prison and $500,000 in fines.
Civil suits challenging the CDA have been filed by the ACLU, Center for Technology and Democracy, and Citizens Internet Empowerment Coalition, a group including Apple, Microsoft, the American Society of Newspaper Editors, the American Library Association, and the American Booksellers Association.
What the plaintiffs want are the same First Amendment rights as print publishers. Congress, on the other hand, claims that online speech should be subject to the same regulations governing radio and TV broadcasts. In the meantime, U.S. District Judge Ronald Buckwalter has prohibited the government from enforcing most of the CDA because it is unconstitutionally vague. Buckwalter did leave intact the CDA's reference to "patently offensive" material, allowing government prosecution within certain guidelines. Nevertheless, the Justice Department won't prosecute until a court decision is reached.
Because the bill requires expedited judicial review of any challenges to it, there's little doubt that the CDA will end up before the Supreme Court within a year. When this happens, the Supreme Court will be in a conundrum. Although it does not currently have an official Web site, the Court is going online in the near future and will provide full-text versions of Supreme Court decisions--including the now famous (or infamous, depending on how you look at it) 1978 FCC v. Pacifica Foundation decision dealing with a radio broadcast of George Carlin's 12-minute "Filthy Words" monologue. A verbatim transcript of "Filthy Words," prepared by the FCC and replete with CDA-banned words, is part of the decision. (The complete decision is available "unofficially" at various law-oriented Web sites around the country.) By posting the decision online, the Court will be in violation of the law it will have to review.
Putting CDA aside, other legal challenges to the Telecommunications Act revolve around Rep. Henry J. Hyde's (R-Ill.) attempt to prohibit online discussions of abortion by tacking on the 100-year-old Comstock law. Hyde's addition makes "using interactive computer services to provide or receive information about abortion" punishable by a $250,000 fine and/or five years in prison.
(Perhaps confused about his own proposed legislation, Hyde said on the House floor that "any discussion about abortion, both pro-life and pro-choice rights, is protected by the First Amendment guarantee of free speech," adding that "this amendment...does not prohibit serious discussions about the moral questions surrounding abortion, the act of abortion itself, or the constitutionality of abortion." Pontificating aside, the new law says otherwise.)
Not wanting to be left out, lawyers for both local and long-distance telephone service providers are lining up at the legal trough, too. Although delighted that the Telecommunications Act opens the switch to local-service opportunities, long-distance providers like AT&T and MCI are already challenging the long-standing requirement that rural--and less profitable--customers be allowed equal access to universal service. Long-distance providers also are squawking about "must-carry" provisions, previously limited only to cable TV, which now apply to phone companies, too. Nor do they like the provisions that require discounted Internet access rates for schools and libraries. (Paradoxically, the Telecommunications Act mandates $2 billion for bringing the Internet into classrooms, while other Congressional proposals cut $3.1 billion from the education budget.) Clearly, what the long-distance companies want are the benefits of expanding their customer base, without the responsibilities that go along with it.
The Telecommunications Act also greases the skids for cable television providers to get into the telephone and Internet service business, and vice versa. Within a year or so, a lot of us will be able to get high-speed Internet access over the same line as cable TV. This means it will be legal for "indecent" audio and video coming from an HBO movie to enter our homes for TV viewing, but illegal for the same words and pictures to come via the Internet--and across the same cable, too. Go figure.
If you're confused by the Byzantine contradictions of the Telecommunications Act, you're not alone. Yes, the Act does have its pluses. I'm all for my local phone provider having competition, but not at the expense of the First Amendment. The final straw, however, was last week's notice that my monthly cable TV rates are going up $2. A person can only take so much.
Jonathan Erickson
editor-in-chief