to the Special Feature on
Communications Regulation - New Patterns and Problems
School of Law
University of Warwick
This Introduction was published on 31 October 1997.
Citation: Hitchens L, 'Introduction to the Special Feature on Communications Regulation - New Patterns and Problems', 1997 (3) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/issue/1997_3/hitchen.htm>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1997_3/special/introduction/>
This issue of JILT includes a special feature on Communications Regulation. Communications is an area of increasing regulatory importance as traditional technological and geographical boundaries give away. It is not that many years ago that some legal scholars had difficulty appreciating that the field of communications could merit serious academic endeavour. Now, however, even the most disinterested observer can scarcely avoid an awareness that communications regulation is attracting the attention of legal practitioners, scholars and regulators world wide. This special feature is further evidence of that interest, along with the plans for a new electronic journal, International Communications Policy and Regulation (ICPR), to be dedicated to communications regulation.
The important role that the media can play in promoting freedom of expression has always ensured that the regulation of media required careful attention. Public broadcasting systems, licensing regimes and limits on ownership and control were regulatory tools favoured by many democratic nations. The success of these regulatory efforts is perhaps debatable when one considers the commercial strength and size of current media operators such as Murdoch and Bertelsmann. Nevertheless, for the regulators, there was at least the comfort of being able to identify the subject matter for regulation. This is increasingly not the case. Technological developments mean that those concerned with the design of regulatory frameworks can no longer draw neat legal borders around broadcasting. The traditional technological boundaries which enabled one to identify what were telecommunications, broadcasting and computing activities are collapsing rapidly as it becomes possible for sound, video and data to be delivered via the same medium. Familiar and traditional regulatory models are suddenly brought into conflict. Is a common carrier regulatory model still appropriate when telephone lines may be delivering video material? What is the point of imposing detailed and specialised content regulation on television channels if the viewer can simply download programming to order via the Internet? These are no longer futuristic scenarios. Macmillan and Blakeney in their article, The Copyright Liability of Communications Carriers, discuss a recent Australian decision which held that a telecommunications carrier had infringed copyright in relation to music played over the system whilst telephone listeners were on hold. As the authors acknowledge the circumstances of this case seem technologically rather mundane when one contemplates the current communications revolution. However, it does indicate the pervasiveness of this changing environment as it raises new questions in all areas of law. The prospect of these developments means that new regulatory models have to be designed which can take account of this dynamic environment. This is not simply a mechanical problem. As Marsden demonstrates in his article, Convergence or Coexistence?, choosing or designing regulatory tools suitable for a converging environment is made more difficulty because of the divergent policy perspectives (not to mention rivalry) which the broadcasting and telecommunications regulatory bodies bring to the task. Moreover, the convergence of communications, combined with other developments mentioned below, necessitate, as Feintuck discusses in his article Regulating the Media Revolution: In Search of the Public Interest, a fundamental rethinking of the rationales for regulation.
The complexities of these regulatory questions are exacerbated by the knowledge that the telecommunications sector is undergoing major economic and regulatory restructuring world wide. The familiar model of a public (or private, but closely-regulated) natural monoply delivering telecommunications services has given way, through policies favouring deregulation, privatisation and economic liberalisation, to an open telecommunications market in which competition is promoted. Thus, even putting aside the challenges of convergence, the telecommunications sector is having to develop appropriate regulatory models suitable for this changing sector, which also take into account its inheritance of a dominant telecommunications operator. Scott's article, The Proceduralization of Telecommunications Law: Adapting to Convergence, explores this process of refining the mode of regulation of telecommunications and assesses whether current approaches to regulation will be appropriate for a converging communications environment.
In addressing these new regulatory questions, governments do not have the comfort of being able to consider the issues simply within the confines of their territoral 'four-walls'. Not only do those concerned have to contend with the impact of these technological developments, but they also have to recognise that these technological advances will not respect traditional jurisdictional boundaries. Cross-border broadcasting is an issue with which the European Community has had some experience. Since 1989, Community regulation has been in place regarding the content of cross-border broadcasting. For the past few years, the Community has been contemplating the necessity of providing European regulation of media ownership and control. However, as Doyle's article, From 'Pluralism to Ownership', discusses, this is a process which is proving somewhat intractable as the European Commission faces opposition from member states and powerful media companies. Even if European Community-wide media regulation were to be introduced, the impact of such regulation is questionable given that the Commission's proposals, in their present form, address the regulation of television and the press only. This is a little like trying to regulate for a scenario which may no longer be in existence. A number of the articles in this special feature make the point that nations must seek regional and international solutions to the legal and regulatory problems posed by the changing communications environment. This is not an easy task when the current international context, through institutions such as the World Trade Organisation, is one of economic liberalisation.
Communications regulation may have become an area of increasing interest to academics, but its growing popularity bears no corresponding relationship to the readiness with which one is able to provide satisfactory regulatory solutions. It is easy to create the appearance of trivialisation of the field, as jargonistic terms are thrown into the debate and the prospect of an abundance of communication sources seems to herald some form of post-regulatory environment. But this would be to succumb to an economic and technical determinism. The questions for scholars remain serious and profound. As governments around the world rethink the role of the state, it will be for scholars, seeking regulatory solutions, to keep reminding us of the fundamental importance that communications has in providing a stage for the public debate which is so crucial to democratic societies.