House Commerce Kicks Off Communications Act Update Process with White Paper, Hearing

"This #CommActUpdate is critical to ensuring that the communications and technology sectors, the bright spot of our national economy, have laws and regulations that foster continued innovation and job creation,” Upton and Walden said Wednesday in a joint statement, using the Twitter hashtag they first introduced last month pegged to the Communications Act update process. “This is the first step in a multi-year open and transparent effort and we look forward to broad input from the many interested parties."

Earlier this week, the Communications Subcommittee scheduled a Jan. 15 hearing with former FCC chairmen to discuss the update (CD Jan 8 p9). Details weren’t available. The former chairmen set to testify at the hearing will be Julius Genachowski, Michael Powell, Reed Hundt and Dick Wiley, a communications industry lobbyist told us. A spokesman for the committee did not confirm or deny those names, but a second industry official confirmed the four witnesses.

Stakeholders have told us updating the law will be an enormous challenge, likely requiring multiple years, but that it’s probably necessary. Top state regulators at NARUC also back such an update and argue it may create clarity at the state level (CD Dec 23 p7). The act was written in 1934 and updated in 1996.

"We're glad [Energy & Commerce Committee] leadership is soliciting feedback as the Committee starts down this path,” Free Press Policy Director Matt Wood told us. “We look forward to taking part in the discussion when it’s constructive. But the conversation will show that the Act today is already technology neutral. It charges the Commission with promoting timeless values like affordable service, diversity of voices, open networks and competitive choices. That means the focus on updating the law is misplaced. Instead we need the FCC to follow the law and enforce it, after more than a decade of agency inaction and indecision on too many pressing problems.”

Signs of a real Communications Act update will be legislation, even if it ends up failing the first time it’s introduced, said the communications lobbyist, who formerly worked on the Hill. An update will likely take years and multiple sessions of Congress -- hearings and white papers may set the stage but are just “embryonic” gestures now, he said. The lobbyist said the cynical view of the update, which he subscribes to, is that announcing the update now is a tactic to try to pass a clean reauthorization of the Satellite Television Extension and Localism Act, which will expire at the end of the year. Walden has said he wants STELA to pass clean. But the committee does seem to be gearing up for a broader update in the next two to four years, the lobbyist said.

House Commerce’s first white paper describes the history of communications law and the challenges of updating the act. “Changes to the Communications Act have become problematic due to the rapid pace of innovation in technology,” the paper said. “Narrow statutory provisions tailored to address specific circumstances can quickly become outdated by the pace of innovation. Conversely, broad prescriptive rules can have unintended consequences for innovation and investment.” It criticized the “siloed” regulation created by splitting “the overall regulatory scheme into separate titles based on specific network technologies and services.” This approach has carried over onto FCC bureaus, resulting in a situation where some agency staff “may duplicate certain functions and fail to cover other functions, resulting in a lack of clear regulatory authority.”

It pointed to the “classification challenges” of the Internet and VoIP. “At the same time, absent clearly delineated classification for certain services, the Commission has nonetheless sought to impose regulations that stem from its Title II authority,” it said. “At best, this approach creates uncertainty for innovators and opens the Commission to legal challenges. It is vital that any changes to the law account for the impact on consumers and industry alike."

House Commerce wants responses to several questions by Jan. 31. It asks whether the Communications Act should be structured around particular services as well as what an act should look like now, questioning which parts should be kept and which dropped. “How do we create a set of laws flexible enough to have staying power?” House Commerce asked. “How can the laws be more technology-neutral?” It questioned whether distinguishing between telecom and information services makes senses anymore and if not, what else should be done.

"I think the questions are just the right ones to ask at the beginning of the process,” said Free State Foundation President Randolph May. “You want to begin by trying to elicit responses that relate broadly to what the basic structure of a new act should look like. What’s the proper framework model, and why? I think by getting the first questions out now, the Committee wants to send a signal that it is serious about the effort. That’s a good thing."

The committee will release more white papers on “discrete issues,” according to the first paper. The initial paper’s focus intended to address “thematic concepts,” it said. (jhendel@warren-news.com)