COMMUNICATIONS ACT 2021.

• Author: Lehr, William

Moreover, the FCC has struggled in recent years to establish its authority to regulate broadband services, and also in its efforts to craft a framework to protect an open Internet (sometimes, referred to as Network Neutrality). While many of the fundamental concerns that the legacy Act addressed remain core concerns for public policy, the technology, market, and policy environments have substantially changed.

For example, while most agree that universal access to broadband and Internet services is an important policy goal, the current framework enshrined in Title II of the legacy Act does not do a good job of advancing those goals. Additionally, spectrum policy within the FCC is too entangled in legacy decisions that blend management of scarce spectrum resources with media content considerations (4) and industrial policy. (5)

In this paper, we identify the key concerns that a new Act should address, and those issues in the legacy Act that may be of diminished importance. We propose a list of the key Titles that a new Communications Act of 2021 might include and identify their critical provisions. Our straw man proposal includes six titles: Title I establishes the basic goals of the Act and sets forth the scope and authority for the FCC; Title II provides the basic framework for regulating potential bottlenecks; Title III establishes a framework for monitoring the performance of communications markets, for addressing market failures, and for promoting industrial policy goals; Title IV focuses on managing radio-frequency spectrum; Title V focuses on public safety and critical infrastructure; and Title VI addresses the transition plan.

Our goal is to provoke a discussion about what a new Act might look like in an ideal, clean-slate world; not to address the political, procedural, or legal challenges that would necessarily confront any attempt at major reform. That such challenges are daunting we take as given and as a partial explanation for why the legacy Act has survived so long. Nevertheless, it is worthwhile to create a clear picture of what a new Communications Act should include, and the benefits that having a new Act might offer so that we can better judge what our priorities should be, and what reforms might best be attempted.

1. Introduction

   The Communications Act of 1934, as amended by the Telecommunications Act of 1996, is showing its age. (6) Like an old New England house that added drafty new additions over the years to accommodate a growing extended family, the Act is poorly suited to meet today's challenges. (7) Much of what is included in the Act relates to earlier technologies, market structures, and regulatory constructs that address issues that are either no longer relevant or that cause confusion when one tries to map them to current circumstances. (8) The legacy Act was crafted in a world of circuit-switched POTS (9) telephony provided by public utilities, and even when substantially revised in 1996, barely mentions broadband or the Internet. (10)

   Moreover, the FCC has struggled in recent years to establish its authority to regulate broadband services, and also in its efforts to craft a framework to protect an open Internet (sometimes, referred to as Network Neutrality). (11) While many of the fundamental concerns that the legacy Act addressed remain core concerns for public policy, the technology, market, and policy environments have substantially changed. (12) For example, while most agree that universal access to broadband and Internet services is an important policy goal, the current framework enshrined in the Title II of the legacy Act does not do a good job of advancing those goals. (13)

   In this paper, we identify the key concerns that a new Act should address and those issues in the legacy Act that may be of diminished importance. We propose a list of the key Titles that a new Communications Act of 2021 might include and identify their critical provisions. (14) Our straw man proposal includes six titles: Title I establishes the basic goals of the Act and sets forth the scope and authority for the FCC; (15) Title II provides the basic framework for regulating potential bottlenecks; (16) Title III establishes a framework for monitoring the performance of communications markets, for addressing market failures, and for promoting industrial policy goals; (17) Title IV focuses on managing radio-frequency spectrum; (18) Title V focuses on public safety and critical infrastructure; (19) and Title VI addresses the transition plan. (20)

   Our goal is to provoke a discussion about what a new Act might look like in an ideal, clean-slate world; not to address the political, procedural, or legal challenges that would necessarily confront any attempt at major reform. That such challenges are daunting we take as given and as a partial explanation for why the legacy Act has survived so long. Nevertheless, it is worthwhile to create a clear picture of what a new Communications Act should include, and the benefits that having a new Act might offer so that we can better judge what our priorities should be and what reforms might best be attempted.

2. Background

   Communications law in the U.S. is a complex amalgam of legislation, regulatory, and court decisions that have accumulated over many decades. The Communications Act of 1934, as amended ("the Act"), is the centerpiece legislation that created the Federal Communications Commission ("FCC") as an independent regulatory agency and underlies the core provisions of telecommunications regulatory policy. (21) The Act is comprised of seven Titles, but the ones that will concern us most here are Title I, which establishes the FCC as an independent regulatory authority; Title II, which specifies the common carrier framework for regulating telecommunication services; Title III, which addresses services that use the radio spectrum; and Title VI, which focuses on services provided by cable television network providers. (22)

   This basic framework (circa 1996) was established in a pre-convergence world, wherein the industry, technical and market boundaries between telephone networks, over-the-air broadcast services, cable television networks, and computing were fairly distinct. (23)

   Regulating telephone networks as public utilities and common carriers made sense because historically they were regarded as natural monopolies that collectively comprised a national end-to-end network that needed to interconnect with other national end-to-end telephone networks. (24) Over-the-air television and radio broadcasters were regulated as content providers that made use of scarce radio frequency spectrum. (25) In both cases, the providers owned and operated network facilities based on quite different technologies. (26) Although the digitalization of telecommunications networks and the rise of demand for data communication services began to blur the boundaries between telecommunications and computing, the equipment and software used for telecommunications (and broadcast television) was sufficiently specialized and distinct from general computing hardware and software to make it feasible to sustain regulatory separation, at least in the early days. (27) Telephone network providers and over-the-air broadcasters each could be regulated by the FCC under separate Titles overseen by separate bureaus; while computer hardware and software were exempt from FCC oversight. (28)

   With the emergence of cable television networks, the new types of providers were regulated under a new Title of the Communications Act as a separate class of service providers. (29) Although both cable and telephone network providers had similarities in terms of offering wired network facilities that were monopolies in their local markets (and hence were subject to public utility regulatory over-sight), (30) their networks made use of quite different technologies and they offered non-overlapping services. (31) The fact that cable television providers did offer services that competed directly with over-the-air broadcasters, including direct broadcast satellite services which emerged later, did raise complications that were addressed by adding program access and must-carry rules. (32)

   Finally, starting in the 1980s, the emergence of mobile telephony carriers created another new class of telecommunications service providers with networks that shared the radio-frequency spectrum, while offering services that initially complemented (more than substituted for) fixed telephony services. (33) The licensing of mobile telephone services was designed to promote competition from the start. (34) Initially, spectrum resources were allocated to support two licensed operators in each local market, with one license allocated to the incumbent local (fixed) telephone operator and the other to another, un-affiliated operator (which, in many cases, was the incumbent local telephone operator from another region). (35)

   In the U.S., management of the radio frequency spectrum is split between the FCC, which regulates non-Federal uses (i.e., state and local government, commercial, and private use), and the National Telecommunications Information Agency (NTIA), which regulates Federal uses (e.g., the Department of Defense, Federal Aviation Authority, etc.). (36) As we discuss further below, this bifurcation of regulatory responsibilities is another source of stress in managing national spectrum resources.

   Today, the convergence of technology toward all-IP networks is well-advanced. (37) Traditional wired telephone and cable television network providers have evolved their networks into multi-service broadband platforms that can offer bundles of video, data, and telephony services that compete directly with each other. (38) The evolution of cellular providers into mobile broadband platform providers and expanded availability of Wi-Fi access to fixed wire network services has helped drive the convergence of wired and wireless...