Outdated telecom laws pose a challenge for Ajit Pai’s FCC
© Greg Nash

The most modern part of America’s economy – communications – suffers under America’s most out-of-date law and most backward-looking regulation.

In the absence of Congress passing a modern communications law for the 21st century, it can be hard to see what a modern Federal Communications Commission would or should look like.

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Just like it is hard to know where one is going when driving with a mud splattered windshield, it is hard to see where a modern FCC future should be going when its line of sight is so obstructed with so many obtrusive relics and ruins of bygone technological eras.

 

As the new FCC, led by Republican Chairman Ajit Pai, organizes and focuses on how to legitimately mitigate and reverse the previous FCC’s most retrograde technology-driven regulations, it is much easier to know what is not a modern FCC.

It is not modern for the FCC to cling to the early 20th century notion that communications are a “problem” that the government needs to solve and control when communications today can be a universal solution to problems.

It’s not modern for the FCC to regulate the communications world through obsolete “siloed” technology notions in law, that view radio, telephone, satellite, cable, wireless, and the Internet based upon what these respective technologies could do in 1927, 1934, 1962, 1984, 1992, and 1996.

It’s not modern for the FCC to rely on a common-carrier, regulatory-paradigm designed in the 1880’s for monopoly railroad networks, to regulate 21st century Internet access, when the U.S. government long ago sunsetted all other industries’ common carrier regulation, i.e. 1976 for railroads; 1980 for buses and trucking; and 1984 for airlines.   

It’s not modern for the FCC to use Title II law predicated on the existence of a 1934 copper-wire, telephone natural-monopoly, to economically regulate competitive Internet access that can be delivered over multiple wires: copper, coax, and fiber; and multiple wireless technologies: mobile, fixed, millimeter, satellite, and WiFi. 

It is not modern for the FCC to reinterpret a bipartisan, near unanimous, deregulatory, 1996 Telecom Act that was designed to transition the marketplace from monopoly to competition, to mean the FCC could unilaterally do the opposite with no evidence of a competition problem.

It’s not modern for an “expert agency” FCC to conclude that the old Title II monopoly regulated Public Switched Telephone Network PSTN, and the new Title I packet-switched Internet are the exact same thing.

It is not modern for the FCC to try and permanently lock-in 1970’s cable set-top-box technology going forward, rather than facilitating adoption of 21st century, Internet apps. 

It’s not modern for the FCC to be a redundant, and inefficient reviewer of pending mergers and acquisitions, when it is already the mission and expertise of the DOJ and the FTC to do that.   

It is not modern for the FCC to operate for the last 26 years without the required accountability of being formally reauthorized periodically to ensure effective congressional oversight of the FCC and the legitimacy of the FCC’s appropriated funding and spending. 

In sum, the previous FCC proved exceptionally retrograde.  

Fortunately, the new Pai FCC can lead this FCC in a more modern direction, by legitimately mitigating and reversing the previous FCC’s most retrograde technology regulations.

That said, only Congress can truly modernize the FCC’s outdated goals, processes, and authorities.

Until then, the most modern part of the economy will suffer under the most outdated law.

Scott Cleland served as deputy U.S. coordinator for international communications and information policy in the George H. W. Bush administration. He is president of Precursor LLC, an internetization consultancy for Fortune 500 companies, and chairman of NetCompetition, a pro-competition e-forum supported by broadband interests.


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