Some Former FCC Chairmen to Question Need for Communications Act Overhaul

"My answer is: if it ain’t broke, don’t fix it -- and the FCC is not only not broken, but also it is a model example of agency government,” Hundt, now CEO of the Coalition for Green Capital, plans to testify (http://1.usa.gov/1hUgd4A). “Just yesterday the Court of Appeals for the D.C. Circuit remanded to the FCC the Open Internet order. ... I suspect that the current FCC has the authority to re-write the regulation so as to accomplish its pro-competitive and pro-consumer goals, as they have been repeatedly stated by Congress. That, at any rate, is the mission this subcommittee ought to give the FCC.” The Republican leaders of the subcommittee and the House Commerce Committee praised the court decision Tuesday (see separate report in this issue).

The current laws have enabled significant innovation and creativity on the part of the U.S., Hundt will testify. He will enumerate ways he believes Congress and the FCC did things well over the last two decades.

Don’t get rid of the good parts of the Telecommunications Act of 1996, Copps will testify. He is now special adviser to Common Cause’s Media and Democracy Reform Initiative. “While it is praiseworthy to ponder changes to the law, I would suggest, firstly, that the framework of the current statute remains in many ways strong and, secondly, that the current Act’s provisions can still do much to improve our communications landscape, to enlarge economic and social opportunity for all of us, and to nourish the kind of civic dialogue upon which successful self-government inevitably depends,” Copps will testify (http://1.usa.gov/1d3V4wN). He will urge lawmakers to go visit communities that would be affected by changing the law. Copps will also lament how Tuesday’s D.C. Circuit Court decision on net neutrality is an example of people “undermining” the Communications Act.

Powell, now CEO of NCTA, plans to outline how a simpler, more nimble Communications Act could help industry, with seven principles offered to help accomplish that. “In stark contrast with past communications markets, the modern market re-invents itself constantly and rapidly,” Powell will say, according to his written testimony (http://1.usa.gov/1dnouKZ). “A new Communications Act should encourage, protect, and incent this innovation.”

The act should nurture conditions for innovation, which requires free markets, risk-taking and stability, Powell will testify. He wants Congress to organize the Communications Act better and provide for timelier responses from government. “A question in the white paper asks whether structuring the Act around particular services works for the modern communications sector,” he will say. “The answer is no.” He backs eliminating regulatory silos. His testimony will describe how much the cable market has changed and suggest changing the FCC’s authority, which should be streamlined and offer the agency the ability “and the duty” to change legal requirements as the market transforms consumer demand. The law should ensure competitive parity and technical neutrality, Powell will say, talking about the onset of IP. It’s “increasingly problematic” how the FCC can create economic conditions for markets, when it should just be policing markets, he will say.

"Highly restrictive regulations” on wireline telephony and broadcasting hurt industry players, Wiley, who now heads the communications practice of Wiley Rein, will testify (http://1.usa.gov/1hTyLBY). “In the developing IP-centric world, all types of providers should be able to market all kinds of services, employing the same computer-oriented language that defines digital communications,” Wiley will say. “And yet, the 1996 Act continues to regulate communications markets differently based on the conduit used to reach the customer (as well as the geographic location where traffic originates and terminates)."

Wiley will recommend the same flexibility Powell invoked. A new Communications Act should display “a flexible and technologically neutral framework that will be capable of adapting to technical invention and innovation, whatever it may prove to be,” he will say. His principles back eliminating regulatory silos, eliminating the distinction between interstate and intrastate services due to the advent of post-geography IP, and institutionalizing the light touch approach, with sunset provisions built in.

But Copps will point to how the U.S. is no “veritable broadband wonderland” and show how the U.S. lags behind others and pays more for certain types of connectivity. He also will promote the concepts of media diversity. “My greatest disappointment at the Commission is that we didn’t do enough to encourage media that truly reflects the diversity of our people,” he will say. “Can you believe that today there is no African American-owned full-power commercial television station anywhere in the land?” Hundt also will point out how the FCC “should be less than delighted with the status of DSL” in the U.S. and how the “unbundling regime” promised by the 1996 act was not implemented as intended. E-rate is a key area for reimagining, he will say.

"If the appellate courts err, Congress may wish to step in,” Hundt will tell the subcommittee. “If the FCC blunders, Congress also has the power and the duty to step in to correct its expert agency. But history shows that at least as to this sector, government’s mistakes are outweighed by its successes and I am confident that this committee and the very able new FCC chair, who has assembled a very savvy team, can continue that history into the future."

Consumer protections are also important, former chairmen plan to testify. Powell will emphasize 911 services, universal service, law enforcement coordination and ensuring that people with disabilities have access. An overhaul of the act, however, must “ensure that regulators do not use the guise of ‘consumer protection’ to stray into what is really economic regulation, such as regulating rates or terms of service,” he will say. But Wiley will tell Congress economic regulation should be considered in the case of market failure. He will advocate the act recognize consumer protection and public safety considerations. Committee Democrats issued a memo Tuesday outlining the key issues of any update to be broadband Internet access services, spectrum policy and video services (http://1.usa.gov/1m5t8Ow).