Any update to the Communications Act will take a while to make happen, especially since — as Julian Hattern for The Hill highlights today — the Senate is unlikely to get started soon:
The Senate won’t be following the House’s lead this year to overhaul the sweeping law regulating the TV, radio and other communications services, which has not been updated since the rapid growth of the Internet.
The House Energy and Commerce Committee has begun to probe ways to bring the Communications Act into the 21st Century, but Sen. Mark Pryor (D-Ark.) said on Tuesday that the Senate Commerce Committee, of which he is a member, probably won’t be following suit in 2014.
“I doubt we’ll do anything this year but I know that the House has been saying that they want to open that and certainly we’ll be seeing what they want to do,” said Pryor, chairman of the Senate Commerce subcommittee on Communications, at a winter meeting of the National Association of Regulatory Utility Commissioners in Washington.
Still, any step toward updating the relic of an Act is a positive one. As our own Rick Boucher — who played a major part in the last update of the Communications Act — wrote in a recent op-ed for Roll Call. As Boucher wrote:
Today, the FCC is both catching up and leading. It must catch up to the large majority of Americans who have made their own personal transition to smartphones, tablets and other devices that provide 24/7 connectivity to the Internet and its treasure trove of information and entertainment. At the same time, the agency also must lead by joining Congress in crafting an updated regulatory framework that supports continued innovation and network expansion and extending a helping hand to guide the minority of Americans who have not yet joined the digital world.
To complete the journey, Congress and the FCC must clear the road of outdated rules that made sense for the telephone monopoly era of the 20th century but which now slow the shift to the multitasking digital networks of the future. For example, the old rules require local phone companies to invest billions of dollars every year in the old voice telephone network that droves of Americans abandon every day. Every dollar spent on the aging, single-purpose analog phone system consumers are fleeing is one less dollar invested in multifunctional modern digital networks consumers prefer.
Last week, the House Subcommittee on Communications and Technology began the long march toward a new Telecommunications Act, which hasn’t been updated since 1996.
If you tuned in, you probably asked yourself why it’s taken so long to kick-start the process — a fair question given how much the Internet has changed since new episodes of Seinfeld were on the air. While the 1996 Act was certainly effective in creating America’s broadband boom, like all legislation it has quickly been eclipsed by the speed of technology. If the lawmakers who penned the Act had anticipated something like Netflix or the iPhone would arrive in less than 20 years, they probably would’ve made some edits. They would also probably be billionaires by now.
That’s not a jab at the men and women behind the 1996 Act — a roster of lawmakers that included our own Rick Boucher — but rather, a reflection of the seismic shift that has occurred in our lives since the Act was signed into law. High-speed Internet has become such a powerhouse in our daily lives that for many of us it’s hard remember life offline. And now that most of us now carry a computer disguised as a phone in our pocket — a computer that’s always connected via mobile broadband — another major shift is underway. One that will certainly help shape the next Telecom Act.
That shift is the transition from the old telephone network to high-speed broadband based networks, which the FCC has announced will begin with test trials in pockets of America. What’s interesting about the transition is it’s both a major change and a minor one. It’s major because it’s nothing less than a complete overhaul of our communications infrastructure. At the same time, it’s minor because for many of us, the transition has already happened. Get your phone service from your cable and Internet provider? You’ve made the transition. Is your home wireless only? You’ve made the transition.
While the IP Transition wasn’t the major focus of the House hearing this past week, the path that brought us to this point was well represented. The testimonies of former FCC Chairmen Richard Wiley and Michael Powell in particular highlighted how a light regulatory touch has brought about the arrival of a high-speed broadband world. As Wiley told the Subcommittee in his prepared remarks, “The  Act’s purpose was as simple in theory as it was complex in implementation: to provide for a pro-competitive, deregulatory national policy framework designed to accelerate the deployment of advanced services and open all telecom markets to competition.”
When examined that way, the 1996 Act was a smashing success. But as both Wiley and Powell pointed out in their testimony, the key to that success was avoiding the ever-present urge among policymakers to wield a heavy regulatory hammer. “Any consideration of a new Communications Act should be guided by the oath to ‘first do no harm,’” Powell told the Subcommittee, adding: “The communications infrastructure and market in this country have thrived, in stark contrast to the challenges with the power grid, or the transportation system.”
That same spirit of ‘first do no harm’ will be critical as we transition to next-generation broadband networks, particularly since the transition will mean the expansion of broadband access to millions of Americans. That’s a goal we can all get behind, and it’s one that will take billions in private investment to achieve.
Ensuring those billions flow means regulators and policymakers should do all they can to enable the private sector to invest and deploy high-speed broadband. That means moving quickly to kick off transition trials in local markets — something the FCC has already signaled its willingness to do — and revisiting existing rules that may slow the transition down.
“[T]he reality is that the government has great difficulty in writing laws or promulgating regulations that can keep pace with advancing technology,” Wiley told the Subcommittee, “especially so in a dynamic and ever-changing industry like communications.” While the former FCC Chairman was talking specifically about the Telecom Act, his words of warning also apply to the IP Transition. Whatever form the next Act ultimately takes, it will be signed into law in an all-IP world.
Here’s hoping regulators play their part in the IP Transition in a way that reflects the realities of our vibrant and competitive communications industry. More investment means better networks and increased access to broadband. And all it will take to get there is the type of light regulatory touch that got us here in the first place.
The last major revision of the Teleommunications Act occurred way back in 1996 (our Honorary Chairman Rick Boucher, who was chair of the Energy and Commerce Subcommittee on Communications, Technology, and the Internet at the time, recently wrote about the Act for Roll Call). Given how radically things have changed since then, it’s a good thing the law included provisions, such as in Section 10, that allow the FCC to forebear. But as Paul Barbagallo of Bloomberg reports, at least one former FCC Chairman believes any changes to the Act will be minor:
Congress is likely to make small tweaks to the Communications Act, despite calls for a major rewrite of the statute, Richard Wiley, chairman of Wiley Rein LLP, said Feb. 19.
The last revision to the Communications Act, in 1996, took Congress nearly ten years to complete, and was itself the first major update to the law since 1934, Wiley noted during an event hosted by the Hudson Institute, a conservative policy and research group in Washington.
“I would like to see a big new statute,” Wiley said. “I think that would make sense for the country. But I’m not sure how soon that would happen.”
With Congress set to update the 1996 Communications Act to better reflect today’s broadband age, Sen. John ENsign (R-Nev.) is calling on the FCC to abandon its regulating the Internet under Title II. From the Washington Post:
The ranking member of the communications subcommittee said that the FCC shouldn’t proceed with its plan as Congressional Democrats last Monday announced plans to update the 1996 Communications Act to better reflect the nation’s Internet-based communications infrastructures.
“Much of our communications law is based on 19th-century railroad regulation, and the last significant update, 14 years ago, barely mentioned the Internet,” Ensign said in a statement. With the announcement by commerce committee chairmen to revisit the laws, “the FCC should abandon its misguided attempt to upend settled and successful Internet policy by reclassifying broadband service as a common carrier.”
But as the Hill reports, another Senator from across the aisle disagrees:
“Senator [John] Kerry believes that this process is complimentary to the efforts at the FCC, not a substitute for them. The deliberative process, both here and at the agency, will help inform and enhance our respective responsibilities to write and execute law and regulation that encourages innovation, inclusion, and consumer protections.”
Quickly after the FCC’s announcement that it will be moving forward with regulating the Internet under aspects of Title II, a number of Internet providers and analysts called on Congress to modernize the Communications Act. Yesterday, the New York Times reports, key members of Congress are looking to do just that:
Senator John D. Rockefeller IV of West Virginia, chairman of the Senate Commerce, Science and Transportation Committee, and Representative Henry A. Waxman of California, chairman of the House Committee on Energy and Commerce, said in a joint statement that they would hold meetings in June to examine how the Communications Act meets the current needs of consumers, the telecommunications industry and the Federal Communications Commission.
The Communications Act was last overhauled in 1996 — a process that took five years.