Republicans are eyeing a major overhaul of the rules governing the nation’s phone, TV and Internet companies after winning control of Congress in Tuesday’s midterms.
Updating the foundational Communications Act is a key priority for Sen. John ThuneJohn ThuneSenate confirms first nominees of Trump era Senate gears up for battle over Trump's CIA pick GOP, Dems hear different things from Trump MORE (R-S.D.), who is expected to take the reins of the powerful Commerce Committee next year. It has been a top issue for his colleagues leading the House Energy and Commerce Committee for months.
Current rules “are woefully out of date and obsolete,” said Robert McDowell, a Republican former commissioner on the Federal Communications Commission (FCC) who is now a partner at the Wiley Rein law firm.
The landmark 1934 law created the FCC and set the standard for regulating radio, television, phones and other means of communications. It was last updated in 1996, when dial-up Internet was still cutting edge and before companies like YouTube, Netflix and Skype seemed imaginable.
Critics say that the law uses regulatory silos to give different treatment to varying types of services — such as phone, television and radio. That’s posed barriers for new technologies such as phone calls that travel on Internet wires — known as voice over Internet protocol (VoIP) — or companies that want to let people watch TV through the Internet.
“The idea that you can treat cable one way and telco [or] broadband... another has been proven in practice to be a terrible mistake, and every time we’ve eliminated those silo-specific barriers the response has been greater investment and innovation,” said Ev Ehrlich, an economist who was an undersecretary in the Commerce Department under President Clinton.
Republicans on the House Energy and Commerce Committee have been plotting an update all year, issuing a series of analytical papers on the flaws in the current law and meeting with former regulators and advocates to craft a path forward.
Now that Republicans control the Senate, too, the effort seems to be on the fast track.
“Sen. Thune looks forward to working with his counterparts in the House to explore ways to update and modernize our nation’s communications laws and maintain a light regulatory touch for the Internet,” Thune spokeswoman AshLee Strong said in an email.
Staffers from both parties in both chambers of Congress have been meeting on the issue, she added, and will continue talks before the new year.
In the House, lawmakers have said they intend to put pen to paper in January. The ultimate goal, they say, is getting legislation signed by President Obama before the end of 2016.
“We want to take action. We want to get some documents out there for people to be talking about,” said David Redl, a top staffer on the House committee.
“We’re going to seize this opportunity and see how we do. We are absolutely moving forward in the next Congress to move something in the next Congress,” he added.
“We’re not getting ready to put something out there and say: ‘That’s okay; we’ll do something another year.’”
It’s an ambitious deadline, considering the multiple powerful interest groups involved in the effort. The cable, broadcast, wireless and Internet industries all expect to be heard in the debate.
The biggest stumbling block may be net neutrality, the notion that Internet service providers like Comcast and Time Warner Cable should be required to treat all online traffic equally, no matter which websites people are visiting.
The FCC is expected to release new rules by the end of this year, after months of controversy over a previous proposal from Chairman Tom Wheeler that some critics said would allow for companies to cut deals and speed up service, effectively creating “fast lanes” for the Internet.
Current law lays out different rules for treating “common carriers” such as traditional phone service from other types of communications. Supporters of strong rules have urged the FCC to declare that broadband Internet is a common carrier and regulate it as such — a move that has been strongly opposed by many Republicans and industry groups.
Some Republicans have opposed the FCC’s attempt to write new rules, after a top appeals court tossed its previous regulations out earlier this year.
The standoff could spell trouble for the effort to update the Communications Act.
“It’s not that hard to get people on board with a rewrite if you can get a deal done on net neutrality,” said Berin Szoka, the president of TechFreedom, a think tank.
“Both sides have to be able to claim a win,” he added, which could mean taking common carrier rules off the table and limiting the discretionary power of the FCC while also making sure that there is an avenue to protect people from discrimination.
Already, some supporters of tough net neutrality rules have expressed concerns that the Republican effort could deregulate the communications industry and prop up entrenched businesses.
Still, all sides are optimistic for the time being.
“They say they believe in doing this the right way,” said Chris Lewis, the vice president of government affairs at Public Knowledge, a public interest group. “So it’s hard for me not to be positive when they’re making those assurances.”