Broadband policy history reflects unusual bipartisanship

All eyes are on the Federal Communications Commission (FCC), which has a pending rule-making that some argue should lead to the FCC reclassifying broadband as a regulated common carrier service rather than as a deregulated information service. What's often not told is the story of how this policy foundation was developed.

Contrary to our current environment of hyper-partisanship in politics and policy, I'm happy to report that for nearly 50 years, a consistent and durable policy framework for new communications technologies has been established and implemented. Equally important, it has been supported by a bipartisan consensus spanning several eras of Democrats and Republicans alike.

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During the Johnson administration, the new technology of the times was CATV, which morphed into cable, which now is a leading competitive force in delivering broadband service. Lacking congressional guidance, the FCC moved to assert jurisdiction over cable, utilizing any available regulatory tool at hand. It faced a strong legal challenge that ultimately reached the U.S. Supreme Court in 1968.

During oral argument, the commission's general counsel, Henry Geller, revealed whether the FCC viewed cable regulation as part of its common carrier regime, which is governed by Title II of the Communications Act of 1934, as amended. Geller told the court that "we [the FCC] have held and all the parties are in agreement on this ... CATV is not a common carrier." Justice Abe Fortas pressed ahead to make sure that he understood the government's position. "So, you can't regulate CATV under your common carrier jurisdiction?" he asked. Before even finishing, Geller responded, "[w]e have declined to do it."

The idea of government oversight for cable was revisited in 1973 under the Nixon administration, when a Cabinet committee on cable communications was organized by the White House to assess the need for such regulation. In its report, the committee recommended separating the ownership and control of cable distribution facilities from that of information services carried on cable channels, since their bundling created a point of contention around the function of the transport medium.

But in an often-overlooked statement buried in a long footnote, the report pulled back from what seemed to be a Title II-type approach, noting that it would "not be inconsistent with the separations principle to allow the system operator to have control over one or two additional channels." In other words, common carrier regulation still was unacceptable.

Fast forward to the Clinton administration, committed to bridging the gap between antiquated telecommunications policies and a new approach for the 21st century. Digital communications convergence was exhibit "A," and FCC Chairman William Kennard was mindful of his role in keeping the FCC on course.

"The fertile fields of innovation across the communications sector and around the country are blooming," Kennard said, "because from the get-go we have taken a deregulatory, competitive approach to our communications structure — especially the Internet." Under Kennard's leadership, the FCC pursued a restrained regulatory approach to the Internet.

By 2005, Republican Chairman Michael Powell was at the FCC helm in the Bush administration, but the approach remained consistent and effective.

Careful not to disrupt the Internet's rapid growth by enacting restrictions, Powell stated, "Government regulation of the terms and conditions of private contracts is the most fundamental intrusion on free markets and potentially destructive, particularly where innovation and experimentation are hallmarks of an emerging market. Such interference should be undertaken only where there is weighty and extensive evidence of abuse."

That brings us to 2014 and the Obama administration, which under the leadership of current FCC Chairman Tom Wheeler will be assessing again whether a common-carrier regime makes sense for broadband's future. The heat of partisan voices has endured all summer, but hopefully the light of a well-developed communications policy — embraced over several decades by both major political parties — will begin to shine, as well. As our nation continues to write the history of the Internet, we should consider carefully what has worked so well for so long. A restrained regulatory approach, as history demonstrates, may be the best option moving forward.

Brotman teaches at Harvard Law School and is a nonresident senior fellow in the Center for Technology Innovation at the Brookings Institution. He is the author of Communications Law and Practice, now in its 36th edition.

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