Communications Act Works, Needs No Overhaul, Argue CCIA, OTI, Free Press
Speakers strongly disagreed over whether the Telecommunications Act of 1996 requires a rewrite or, as some preferred to say, an update. Representatives from the New America Foundation’s Open Technology Institute and Computer & Communications Industry disputed the idea that any real overhaul is necessary, while an analyst from the Information Technology & Innovation Foundation insisted a full rewrite is warranted.
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They spoke Thursday at a congressional briefing hosted by the Congressional Internet Caucus Advisory Committee. House Republicans launched an effort to overhaul the Telecom Act in December and have issued white papers and begun holding private staff briefings with industry stakeholders to kick off the process. House Republican staffers tell us they plan to kick off the effort in earnest in the next Congress.
“We actually think the Internet is pretty awesome without any new congressional legislation or any new federal statutes,” said Computer & Communications Industry Association Vice President-Government Relations Cathy Sloan. The Telecom Act of 1996 is “a triumph of competition policy, in our view, and still is today, and just needs to be enforced in certain aspects, more so than it is.”
“I definitely fall into the camp of ‘we do need a Communications Act rewrite,’” said Information Technology & Innovation Foundation Telecom Policy Analyst Doug Brake. “We need to go back to first principles.” He said the IP transition and traditional different silos moving onto the Internet is “an evident problem just looking at the Communications Act as it stands.” He criticized the 1996 act for not addressing the Internet, tallying the word’s mentions, which Sloan argued was done for reasons of congressional jurisdiction at the time.
Comptel General Counsel Angie Kronenberg, who was not a panelist but spoke from the audience, pointed out how the FCC has used the statute to address broadband through its overhaul of its USF high-cost program. “Congress has already answered that question,” Kronenberg said. “That was done, in ’96.”
The Communications Act rests on “bedrock principles” and does not need to be rewritten, said Sarah Morris, senior policy counsel at New America Foundation’s Open Technology Institute. She pointed to common carriage, interconnection and competition as key values embodied in the act.
Free Press has also resisted a Communications Act overhaul. The group was not invited to attend any of the private House Communications Subcommittee bipartisan briefings for staffers earlier this month, "though we also have not fully participated in the white paper and comment process, because we think the FCC should enforce the good laws Congress has on the books already," Free Press Senior Director-Strategy Tim Karr told us recently. Free Press was not represented on Thursday's panel.
Sloan and Morris agreed that some changes may be needed. Sloan mentioned TV blackouts, part of the “vestige” of media regulation that may be out of date now. Consumers should not face blackouts of Internet access, she said. Morris described the FCC’s “very good toolbox” it can use to tackle the Internet, saying some tools may require “a bit of clean-up and reorganization.” Title II reclassification is a part of that, she said. Congress needs to rewrite the act to address those legal jurisdictional questions, Brake said. He favors paid prioritization and wants net neutrality considered in a case-by-case under Communications Act Section 706, he said, but also favors requiring broadband providers offering deals on standardized terms -- a possibility limited to Title II regulation. “We need to clarify the FCC’s jurisdiction,” Brake said.
“We need certainty, we need clarification, and that clarification can’t be generated internally at the FCC -- it has to come from Congress,” said Gus Hurwitz, a professor at the Nebraska College of Law. The FCC has a lot of power over the Internet now, in Section 706 and potentially Title II, but many questions remain about the bounds and limits of that “unclear” authority, Hurwitz said. He mentioned the “loggerheads” between the FCC and FTC on certain issues. He emphasized the different silos that exist now and how the Internet can run on top of all of these different silos. He said that “probably yes,” the act needs an overhaul.
“Not a lot of consensus” exists now what the appropriate solutions are for what’s broken, Sloan said. “Those rules for interconnection were the grand bargain that was reached” in the 1990s, Sloan said. “It’d be nice if we had the same kind of situation now, but we don’t.”