Telco Lawyers' Day in the Sun

With deregulation, FCC auctions and other public policy issues churning, Washington is the place to be for telecom lawyers

To tourists this summer, Washington, D.C., might seem sweltering and obsessively wrapped up inside politics. But to telecommunications lawyers here, no place is as beautiful as the nation's capital.

The overwhelming legal possibilities and problems stemming from telco deregulation will bring the biggest changes the industry has seen in 60 years -- and the Federal Communications Commission's auctioning of chunks of radio spectrum have telecom lawyers salivating.

Although these are two recent milestones, the D.C. area has gradually been growing into a haven for lawyers in the industry. Oil and gas attorneys are in Texas, securities lawyers work out of New York and telco lawyers -- because Congress, the FCC and more high-tech companies are here -- homestead in Washington.

"Because the Washington metro area has become the telecom capital of the world, the legal impact will focus here,'' said Michael Horwatt, principal at the law firm Michael Horwatt & Associates, McLean, Va.

Riley Temple, a partner at Halprin, Temple, Goodman & Sugrue in Washington, D.C., said new public policy naturally follows telecom, which changes faster than any other business. Lawyers who want to be players, he said, have to be where the action is.

"This is an industry driven by technology with policy-makers running behind with bells and whistles," Temple said. "Telco public policy is Washington," he said.

Temple doesn't have to convince most lawyers. Of the 1,800 attorney members of the Federal Communications Bar Association, 1,500 are based in the Washington area. Membership has grown 10 percent in the past year, according to the group, the premier organization of telecom lawyers in the United States.

While other industries are certainly subject to regulation, telecom is most dynamic, said Henry Rivera, FCBA president. "It's difficult to be a telecom lawyer and not be in Washington," he said. A main reason is that high-tech clients expect their lawyers to be on the cutting edge of issues the way the businesses are on the cutting edge of technology, Rivera said.

Right now, most telco attorneys are waist-deep in legislative reform. Although the final outcome is still debatable, the multifaceted bill will affect every part of the industry, from cable to manufacturing.

But don't think "deregulation" means less work. After reform, telecom lawyers will be busier than ever, interpreting jargon and putting rules into practice. The real grind, said Temple, is implementation. A large part of that job will be figuring out where state and local rules mesh with federal regulation and where they conflict.

But Congress isn't the only game in town. The FCC and its numerous battles is in itself a feeding ground for telecom lawyers. In fact, one lawyer said the main reason for them to stay in Washington is to keep in close contact with the FCC, where many telco lawyers once worked.

The agency's top two legal issues are personal communications services and high definition television, according to Audrey Spivack, an FCC spokeswoman.

Selling chunks of radio spectrum to the highest bidder is a giant legal issue, said Ian Volner, partner at Venable, Baetjer, Howard & Civiletti, McLean, Va. The auctions decide who will compete and, ultimately, what technologies are introduced to the market. "The spectrum allocation drives almost everything," said Volner. Because of the high stakes, Volner is concerned about what he calls the "relentless need for spectrum." "I worry that anything that can be sold will be sold," Volner said.

And the initial sale is only the beginning. Current users of the spectrum must be relocated and new hardware must be built and placed to receive signals, possibly causing zoning problems. The new users also must choose technologies and strategic alliances for their ventures. Lawyers, undoubtedly, will have a central role.

The latest legal battle over spectrum erupted late last month when the FCC postponed an auction, set for August, geared toward small businesses and women and minority-owned companies. Some are afraid that putting off the auction will hurt those it was intended to help by slowing small businesses' entry into the market. "My fear is that it will be resolved in a way in which there will be little incentive for businesses to partner with minorities," said Temple.

Two weeks ago, the FCC made one of its biggest jumps toward digital television by asking the industry to comment on a number of issues, such as how broadcasters' public interest obligations should be affected by a shift to digital broadcasting; should there be a minimum requirement for HDTV transmissions; should small market stations receive special considerations; and should mandatory receiver standards be adopted?

After the comments are in, the FCC will devise a standard by November with the help of the agency's Committee on Advanced Television Services. The system is expected to be launched sometime next year.

The FCC's rulemaking process has prompted an outcry among some area associations and lawyers. The Personal Communications Industry Association blasted the action, saying broadcasters should not be allowed to get free spectrum and then use it to compete with the wireless telecom industry.

Another big question, said Volner, is who will develop the converter needed to make digital television a reality. What's more, he said, is the FCC doesn't like to discuss the possibility that, well, digital television might just not work. "They don't want to talk about feasibility," Volner said. "I haven't seen an operating system yet."

Washington telco lawyers are also involved in issues from privacy to harassment, many of which have new meaning in the world of cyberspace.

"Every time there is a new technology there are cutting-edge legal issues," said Horwatt. Most cases he's working on have to do with defamation through E-mail or other electronic communication. Privacy in the workplace is the most important of all of these, he said. A central question is should a boss be able to snoop in a worker's E-mail, and if so, how can the employer use that information.

Other issues include sexual harassment, copyright infringement, and libel. When a company puts up an electronic bulletin board or a new communication system, there are certain risks that must be evaluated, he said. That's a difficult task. "At best, it is making an effort to reduce uncertainty in an unknown world," Horwatt said.

Case law on electronic communication comes out every day. And it is the telecom lawyers here who are becoming the experts. "It's a hot time to be a telecom lawyer," said Rivera.

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