OPINION: Randolph May in the Washington Times: A New Digital Age Communications Act

January 2, 2014

News of #CommActUpdate “Too Important to Go Unnoticed”

To ensure the nation’s communications laws “make sense for today but are also ready for the innovations of tomorrow,” House Energy and Commerce Committee Chairman Fred Upton (R-MI) and Communications and Technology Subcommittee Chairman Greg Walden (R-OR) last month announced plans for the committee to work on a multi-year effort in pursuit of a #CommActUpdate.

Randolph May, President of the Free State Foundation, recently highlighted the impetus for the committee’s work and the need for a #CommActUpdate in The Washington Times. “Even though the communications marketplace is now mostly competitive, regulation of communications companies, in important respects, remains stuck in regulatory paradigms of the distant past,” writes May. “In light of the remarkable marketplace changes since the Communications Act was last revised, the updating process that Mr. Upton and Mr. Walden have announced is certainly welcome.”

The committee will encourage stakeholder input through a number of white papers and questions about what can be done to improve the laws surrounding the communications marketplace and engage in a robust conversation via digital media.

December 29, 2013

A new digital age Communications Act

Regulations Should Reflect Marketplace Changes

By Randolph May

Amid all the news coverage of the ill-begotten Healthcare.gov website and other Obamacare problems, it would have been easy to overlook a recent announcement from two leaders of the House Energy and Commerce Committee. The announcement is too important to go unnoticed.

On Dec. 3, the committee’s chairman, Rep. Fred Upton, and Rep. Greg Walden, chairman of its communications and technology subcommittee, announced plans to use 2014 to begin a process leading to an update of the Communications Act.

As Mr. Walden explained in a news release, the committee plans “to look at the Communications Act and all of the changes that have been made piecemeal over the last 89 years and ask the simple question: ‘Is this working for today’s communications marketplace?’”

The answer to that simple question is “no.” Here’s why.

The reference to “89 years” harkens back to 1934, the year the Communications Act was adopted. The lengthy statute created the Federal Communications Commission and then delegated to the agency expansive, vaguely defined powers to regulate most all communications and media companies. What’s more, key parts of the Communications Act of 1934 were lifted almost verbatim from the Interstate Commerce Act of 1887, the landmark legislation Congress passed to regulate railroad rates.

The railroads have been mostly deregulated for a quarter-century now since Congress recognized the competitive nature of the interstate transportation market — with railroads, trucks, planes, barges, buses and other modes of transport all competing. Even though the communications marketplace is now mostly competitive, regulation of communications companies, in important respects, remains stuck in regulatory paradigms of the distant past.

It is true that in 1996 Congress did make revisions to the 1934 act, partly in response to competition that already was emerging in various previously monopolistic communications market segments. Indeed, in the preamble of the Telecommunications Act of 1996, Congress declared its intent “to promote competition and reduce regulation.” Given the structure of the statute and many of its specific provisions, the reality is that the 1996 act is not suited to achieving its dual objectives.

Perhaps the best that can be said about the 1996 act is that it has served as a transitional bridge from the old 1934 law to the new law that, ultimately, should emerge from the legislative process the House Commerce Committee has commenced.

It is indisputable that the changes in the communications environment since 1996 have been dramatic. During this period, we have witnessed a transition from analog to digital services and from narrowband to broadband networks, and spurred by these technological advances, a transition from a mostly monopolistic to a mostly competitive communications marketplace.

In the 1996 telecommunications act, the Internet was barely mentioned. This is not surprising when you recall that the Netscape Navigator, the first popular Web browser, was not introduced until the mid-1990s. In 1996, there were around 100,000 websites. By the end of 2012, the figure was around 634 million and growing exponentially. …

Read the full column online here.

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