COMPTEL has long contended that the interconnection rights and obligations set forth in Section 251 of the Communications Act, 47 U.S.C. § 251, are technology neutral and that the mere transition from TDM transmission technology to IP transmission technology does not alter those rights and obligations. The Supreme Court majority’s decision in American Broadcasting Cos., Inc. v. Aereo, Inc. handed down on June 25th bolsters COMPTEL’s contention that the substitution of new technology for old in and of itself cannot be used as an excuse to avoid statutory obligations.
The Supreme Court ruled that Aereo violated the Copyright Act and infringed the exclusive right of copyright holders to perform their works publicly by selling subscribers a streaming service that allows them to watch television broadcast programs over the Internet at virtually the same time as the programs are being broadcast over the air. Congress amended the Copyright Act in 1976 to overturn two Supreme Court decisions that had held that community antenna television systems (the precursors of cable TV systems) that retransmitted television broadcast programs to subscribers did not infringe the copyright holders’ exclusive rights to perform their works publicly. Under the amended Copyright Act, cable television systems are required to obtain retransmission consent and licenses from the broadcast copyright holders.
While using a different technology, Aereo delivers over the air broadcast television programs to its customers just as cable operators do. The majority rejected Aereo’s argument that the difference in technology used to provide the television programming to customers distinguishes it from a cable operator and takes it out of the reach of the Copyright Act:
Viewed in terms of Congress’ regulatory objectives, why should any of these technological differences matter? They concern the behind-the-scenes way in which Aereo delivers television programming to its viewers’ screens. They do not render Aereo’s commercial objective any different from that of cable companies. Nor do they significantly alter the viewing experience of Aereo’s subscribers. Why would a subscriber who wishes to watch a television show care much whether images and sounds are delivered to his screen via a large multisubscriber antenna or one small dedicated antenna, whether they arrive instantaneously or after a few seconds’ delay, or whether they are transmitted directly or after a personal copy is made? And why, if Aereo is right, could not modern CATV systems simply continue the same commercial and consumer-oriented activities, free of copyright restrictions, provided they substitute such new technologies for old? Congress would as much have intended to protect a copyright holder from the unlicensed activities of Aereo as from those of cable companies.
Not unlike the position taken by Aereo on the Copyright Act, some large incumbent telephone companies have argued that the substitution of IP transmission technology for TDM transmission technology relieves them of their Section 251 interconnection obligations. But a change in the transmission technology used to deliver a telephone call from one party to another does not alter the statutory obligations of the network providers to interconnect in order to enable the delivery of the call. The “behind-the-scenes” way in which a provider initiates and delivers calls to its customers (TDM vs. IP) does not fundamentally alter the calling experience. Why would a customer who wishes to make or receive a telephone call care whether the providers use TDM or IP transmission technology? No matter what technology a particular telephone service provider uses, interconnection is the lynchpin that allows customers of one provider to communicate with those of a different provider and remains as necessary today as it was 18 years ago when Section 251 was adopted.
Congress created the interconnection rights and obligations in section 251 to ensure that people could continue to communicate with one another by wire or radio as new entrants entered the market and clearly intended that those rights and obligations would transcend any change in the technology used to transmit telephone calls. Indeed, this issue has been teed up and awaiting Federal Communications Commission action for over two years. There is significant support from the rural phone companies, wireless, cable, and competitive carrier industries for the Commission to address this outstanding legal issue once and for all. The Commission should act now to clarify that large incumbent phone companies must interconnect on an IP-to-IP basis for managed VoIP traffic as required by the Act.