A Telecom Act of 2015?
Tuesday’s Google Hangout with Commerce Committee Chairman Fred Upton (R-MI) and Subcommittee Chairman Greg Walden (R-OR) has caused a stir among the digerati: plans for a new bill to overhaul the Communications Act of 1934 for, as FCC Commissioner Ajit Pai put it, “the realities of a 21st century marketplace.”
It will of course be “a multi-year process,” with 2014 devoted to hearings, white papers, and studies aimed at a holistic solution to the innovation, migration, and convergence that the communications sector has seen. No one could disagree that the task of harmonizing today’s regulations, which have “been made piecemeal over the last 89 years,” to borrow Rep. Walden’s phrase, into a unified regime will require lots of time and even more patience.
The central question remains, however, what does this Congress, and most importantly the next one, want? For it already is apparent that those in charge are of two minds with regard to where the FCC must go from here. Commissioner Pai immediately announced his eagerness to reform “provisions of the Act [that] have yellowed with age, unchanged, since the Great Depression,” following on the theme of his statement on the Local Competition Report, decrying “onerous, outdated burdens like tariffing.” Commissioner Pai wants a statute and rules that reflect convergence: “It does not make sense to apply different rules to providers and technologies that compete in the same markets.” Is the Commissioner actually calling for unified deregulation, rather than a set of unified regulations?
FCC Chairman Tom Wheeler, in his speech Monday at The Ohio State University, made clear his belief that “the Internet is not a law-free zone.” The FCC under his watch will “intervene” to maintain what he calls the “Network Compact” that comprises three elements: accessibility, interconnection, and public safety and security. He cited the Open Internet Order, the fate of which shortly will be decided by the DC Circuit, as a key tool for serving these elements. Chairman Wheeler plainly is not ready to abandon it or any similar tool that preserves competition, interoperability, or security. Of course, he stated repeatedly that his aim is not “regulating the Internet,” but that jibe always will be ready on the lips of many players in this industry.
And, indeed, the oft-used, likely miscast “regulating the Internet” punchline will become the 38th Parallel of Chairman Upton’s bold new Communications Act adventure. Dismantling longstanding regulatory silos, Wireline-Wireless-Cable-Broadcast, to embrace the new technological convergence will be one person’s de-regulation and another’s over-regulation. Revisiting the “yellowed” provisions of the 1934, and even 1996, statutes will be innovative to some but retrograde to others. Though all agree that technology has outstripped the reach of many FCC rules, choosing whether to replace them or erase them will reignite the same battles as to what, if any, public duties a service provider retains in the 21st Century.
At first blush it may have seemed excessive to allot an entire year to reviewing the existing system prior even to putting ink to paper on a new bill. But if the Committee’s, and Congress’s, aim is to establish a wholly new, unified, and sensible new statute, a year may prove too short.
For more information, contact Arent Fox partner Stephanie Joyce or any member of the firm’s Communications, Technology & Mobile practice.