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Former FCC Leaders Caution Altering Telecom Law

The U.S. House of Representatives Communications and Technology Subcommittee begins what will likely be a long string of hearings on potential changes to U.S. telecommunications law.

Four past FCC chairmen urged caution as lawmakers look to update U.S. telecommunications law over the next several years.

In a U.S. House of Representatives Communications and Technology Subcommittee meeting on Wednesday, Jan. 15, former FCC leaders Michael Copps, Reed Hundt, Michael Powell and Richard Wiley encouraged the subcommittee to look to the past before launching headlong into altering the Telecommunications Act of 1996 to accommodate technological advancements during the Internet era.

The 1996 law – which authorized regulation of media based on its content, rather than a technology standard -- was the first major overhaul of U.S. telecommunications policy since the Communications Act of 1934. Wiley and Powell said any changes to the law should focus on flexibility and simplicity, respectively, as opposed to dense regulatory language.

Wiley argued that the Telecommunications Act of 1996 and the FCC’s implementation of it succeeded when a lighter regulatory touch was used, such as in the areas of mobile broadband and app development. He believes that going forward, all types of providers should be able to market different kinds of communications services, regardless of what technology is used to transmit that material to consumers.

In written testimony, Wiley explained that the underlying problem isn’t a failure on the part of Congress or the FCC, rather that government typically struggles to write laws and regulations that can keep up with changing technology.

“The objective of a statutory rewrite should not be to legislate premised on the current state of the marketplace or even on predictions of what it may look like in the future,” Wiley said. “Instead, Congress should consider a flexible and technologically neutral framework that will be capable of adapting to technical invention and innovation, whatever it may prove to be.”

Powell said lawmakers considering changes to U.S. telecommunications law should observe the Hippocratic Oath of “first do no harm.” He noted that the communications market has thrived in the U.S. and any potential changes to the act should be viewed with simplicity in mind.

In his live remarks to the committee and in written testimony, Powell outlined a number of principles that could be helpful to lawmakers as they consider changes. They include nurturing innovation; organizing the statute better; giving regulators the ability to address rapid market change; ensure the law fosters parity and technical neutrality; prioritize timeliness when regulatory issues surface; and finally, making sure the FCC polices markets, rather than creating new ones.

“Practicing simplicity can be scary,” Powell said in his testimony. “It takes courage to discard old ideas and rules that are no longer needed. However, thoughtful reduction leads to greater simplicity and a better product for consumers.”

Copps agreed that caution was necessary, but didn’t encourage widespread change. His submitted testimony calls for “making the best possible use” of the law already in place and cites the Telecommunications Act of 1996’s repeated use of “the public interest” in its language, along with highlighting universality of service and competition as evidence that what is currently on the books is doing a good job.

Copps admitted he has some preferences for a reworked Communications Act, but added that a chunk of his concern would be that the FCC and industry already implement what’s currently in place.

“In an ideal world, most of us would welcome an up-to-the-minute rewrite of the law to reflect how we believe it could be improved,” Copps said in his testimony. “The last such revision … while far from perfect, at least envisioned delivering to every American – no matter who they are, where they live or the particular circumstances of their individual lives – the most advanced communications technologies and services feasible at reasonable and comparable prices.”

In a question-and-answer portion of the hearing, Communications and Technology Subcommittee Chairman Greg Walden, R-Ore., asked the former FCC heads if the Internet should be regulated as a “common carrier” like a traditional phone company. Any telecommunications service provider considered a common carrier must open its network to everyone without discrimination.

For example, a phone company has to complete calls even if one of the callers is highly critical of it. To do otherwise would be illegal.

The FCC, however, classified Internet service providers as information services rather than telecommunications services, exempting them from those rules. But there was disagreement among the former FCC chairmen about whether a future update to the country’s telecommunications law should readdress that.

Wiley and Powell both said it would be a mistake to regulate Internet service providers as common carriers with the latter remarking that it would instantly apply “decades-old regulations to the Internet,” which would be damaging to the industry. Copps, on the other hand, favored a common carrier classification for the Internet saying it would supply clarity for businesses and consumers.

Brian Heaton was a writer for Government Technology and Emergency Management magazines from 2011 to mid-2015.