"They [telephone companies] want to establish the principle that this is a ban on speech itself. It's not just a regulation," said Tribe. "Just like a newspaper wants to write its own stories, edit them and publish them, the phone companies want to be able to choose the programming, to edit it and to deliver it themselves."
The ban on video programming by telephone companies began as a Federal Communications Commission regulation in the 1960s and was written into law in 1984. It was intended to shield the blooming cable TV industry from being crushed by the powerful Bell telephone companies.
These days, however, attorneys for the FCC and the Clinton Administration find themselves in an awkward spot. They are obliged to defend an old barrier until Congress repeals it, yet they agree in principle that the time has come for open competition.
"It's no secret we'd love to have telephone companies get into the cable business and the cable companies get into the telephone business," said FCC Deputy General Counsel Christopher J. Wright.
Telephone industry officials say they are eager to get into the video business. They also say that antitrust laws and FCC accounting regulations will prevent them from simply buying up cable TV companies or unfairly subsidizing their entry into the video market.
"There's been a monopoly in the cable business, and we are the answer to that problem," said Bell Atlantic attorney John Thorn.
So far, the "Stargazer," Bell Atlantic's experiment in Northern Virginia, is not a true alternative to cable TV. Unlike the Cable News Network and other operations, it does not offer live programming but rather access to a huge volume of taped programs.
The system works like the movie boxes in hotel rooms, but it allows viewers to stop and restart programs. Charges range from 79 cents for cartoon programs to $4.99 for new movies.
"I'm interested in old [Alfred] Hitchcock films and travelogues, and they have a good selection of both," said Robert A. Lincoln, a retired foreign service officer in McLean, Va. "With the remote, an ancient guy like me can pretend he knows how it works, but I don't have the foggiest idea how it operates."
The signals come over the phone line but they do not interfere with calls, customers say.
Trudy Marotta says the new programming service has proved especially useful for her because she has a 10-year-old son and a husband who uses a wheelchair. But rather than replace the need for cable TV, it has proved to be an alternative to video rentals and special movie channels.
"We canceled HBO and the Movie Channel," she said. The family now spends $12 to $15 a month for Bell Atlantic's programming. "And I don't have to run back and forth to the video store." Bell Atlantic officials say they are confident that this trial will lead to a full-fledged video service.
"We will win either way," through the courts or through Congress, said Thorn, the Bell Atlantic lawyer. "And in time, we will offer a different, better product than the cable companies. Consumers will be able to dial into a virtually unlimited amount of programming."