Thoughts on Democratic Proposal to Update Communications Act

by on May 24, 2010 · 5 comments

I was very pleased to hear this announcement today from leading Senate and House Democrats regarding a much-needed update of our nation’s communications laws:

Today, Senator John D. (Jay) Rockefeller IV, Chairman of the U.S. Senate Commerce, Science, and Transportation Committee, Rep. Henry A. Waxman, the Chairman of the House Committee on Energy and Commerce, Senator John F. Kerry, the Chairman of the Senate Subcommittee on Communications, Technology, and the Internet, and Rep. Rick Boucher, the Chairman of the House Subcommittee on Communications, Technology, and the Internet announced they will start a process to develop proposals to update the Communications Act. As the first step, they will invite stakeholders to participate in a series of bipartisan, issue-focused meetings beginning in June. A list of topics for discussion and details about this process will be forthcoming.

This is great news, and an implicit acknowledgment by top Democratic leaders that the FCC most certainly does not have the authority to move forward unilaterally with regulatory proposals such as Net neutrality mandates or Title II reclassification efforts.

I very much look forward to engaging with House and Senate staff on these issues since this is something I’ve spent a great deal of time thinking about over the past 15 years. Most recently, Mike Wendy and I released a paper entitled, “The Constructive Alternative to Net Neutrality Regulation and Title II Reclassification Wars,” in which we outline some of the possible reform options out there. We built upon PFF’s “Digital Age Communications Act Project,” (DACA) which was introduced in February of 2005 with the ultimate aim of crafting policy that is adaptive to the frequently changing communications landscape. You can find all the white papers from the 5 major working groups here.  I also encourage those interested in this issue to take a look at the video from this event we hosted earlier this month asking, “What Should the Next Communications Act Look Like?” Lots of good ideas came up there.

Anyway, down below I have included the video from that event as well as a better description of the DACA model for those interested in details about how that model of Communications Act reform would work. I think DACA holds great promise going forward since it represents a moderate, non-partisan approach to reforming communications policy for the better.  I pulled this summary from the paper that Mike Wendy and I recently penned:

In 2005-06, The Progress & Freedom Foundation brought together over 50 scholars—a nonpartisan collection of lawyers, economists, engineers and other experts—with the ultimate aim of crafting a new regulatory framework more appropriate for a frequently-changing communications landscape. The resulting Digital Age Communications Act (DACA) project proposed scraping the old regulatory “silos” (Title II for telecom, Title III for broadcast, Title VI for cable) and replacing them all with a Federal Trade Commission-like “unfair competition” standard. Under DACA, the FCC would retain some baseline regulatory authority to oversee the marketplace, but this authority would be limited and based upon more settled principles of competition law and economics—essentially, streamlined antitrust regulation. Serious anticompetitive actions that lead to demonstrable consumer harm would still be policed and punished under this model. But this would be done on a limited, case-by-case basis without prejudging business models or practices or by imposing prophylactic regulatory regimes.

In essence, DACA stood for the proposition that an ex post approach to regulatory oversight was preferable to ex ante forms of preemptive and prophylactic regulation by the FCC. Indeed, the DACA model was based on a model we already have in place: antitrust laws and the adjudicatory process administered by the Federal Trade Commission. The DACA experts, therefore, advocated not that the FCC be abolished, but that an FTC-like enforcement model be imported into the FCC.

To be clear, this is regulation. In fact, when the DACA working group released its initial framework in June 2005, some critiqued the plan on the grounds that it did not do enough to tie the hands of regulators. Others argued that there was no need to import a competition policy regime into the FCC when the FTC and Department of Justice remain perfectly capable of enforcing antitrust laws where anti-competitive conduct can be proven. While those concerns are understandable, they’re also not very practical. Scrapping the FCC is untenable, especially since the FCC still engages in some sector-specific forms of regulation (spectrum standards, interconnection mandates, universal service administration, etc.) that Congress would likely insist remain within the hands of a sector-specific regulator. Nonetheless, the DACA framework would be vastly superior to the sort of heavy-handed regulatory approach currently on the books, or the even stricter “Mother, may I?” approach that some Net Neutrality proponents favor. DACA has the added advantage of not being as susceptible to the problems of regulatory creep and regulatory capture.

  • http://www.wbklaw.com Mike Sullivan

    Call me a cynic, but it seems to me that this legislation — and presumably the other bills that will inevitably be introduced in various shadings from regulation to nonregulation — simply constitutes a marker to all potentially involved interest groups that campaign contributions are being accepted. A lobbyist in a recent BusinessWeek article <http://www.businessweek.com/magazine/content/10…> described Net Neutrality and reclassification as a “fund-raising gusher.”

  • http://www.techliberation.com Adam Thierer

    You got that right, Mike. And it's always been the case. In fact, I was just re-reading this 2006 piece that my friend Tim Doyle wrote when he was at Forbes, “Milking the Internet,” in which he noted:

    >> The stakes are huge for both sides, so both are pouring millions of dollars into political contributions and lobbying to press their argument. Now you know why Congress would let this debate linger on. As long as the issue stays in play, the money keeps flowing. “Telecom reform has been a cash cow for members of Congress,” says Brookings Institution congressional scholar Thomas Mann. “The battles go on for years, and the fundraising requests never stop.” <<

    http://www.forbes.com/forbes/2006/0814/044.html

  • Nick

    I'm confused: why would shifting this debate from the FCC to Congress be “great news” if, as you claim, this would also represent a shift to a primarily money & contribution-driven debate? Wouldn't you prefer to take part in a debate driven primarily by technology, policy, and data? After reading the Forbes article above, I'm having a hard time believing that such a debate is more likely to take place in Congress.

  • Nick

    I'm confused: why would shifting this debate from the FCC to Congress be “great news” if, as you claim, this would also represent a shift to a primarily money & contribution-driven debate? Wouldn't you prefer to take part in a debate driven primarily by technology, policy, and data? After reading the Forbes article above, I'm having a hard time believing that such a debate is more likely to take place in Congress.

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