Commerce, Communications Committee chairmen seek public input on fundamental questions about federal regulation of communications

It’s generally acknowledged that the Communications Act – first enacted four score years ago and not substantially updated in nearly 20 years – is ill-suited for regulation of the 21st Century communications landscape. And now two well-placed members of Congress have announced the start of an effort to update the Act and perhaps restructure the FCC itself.

Given the prominence of the folks making that announcement, anyone subject to the FCC’s regulatory reach should pay attention. But before you get overcome with visions of sweeping change just around the corner, it’s important to temper your expectations with a healthy splash of reality: any significant change to the Act that may occur isn’t likely to happen in the immediate future, if at all.

The two gentlemen responsible for the latest initiative are Fred Upton (R-MI) and Greg Walden (R-OR), the Chairs of, respectively, the House Energy and Commerce Committee and that Committee’s Communications and Technology Subcommittee. You can see them explain their plans in a 13-minute video posted on the Committee’s website. To summarize: Noting that (a) the FCC first opened its doors in the Great Depression and (b) the last time the Act was amended, 56 kb/s by dial-up modem was the state of the art, Upton and Walden sensibly feel that it’s time to talk about an update.

The emphasis, though, is more on the “talk” part than the “update” part.

Rather than advance any proposals, specific or otherwise, they advise that they are “prepared in essence to talk about a launch of a number of hearings”. That suggests that they’re at least four long steps away from any actual legislation, since they are (1) “prepar[ing]” to (2) “talk about” (3) “a launch” of (4) “hearings” – all of which would have to occur before any amendment could occur. They also plan to generate a “number of white papers examining a whole number of different issues”. 

The goal of all this is to “begin to actually launch an update beginning in 2015”. So the actual “launch” of any actual legislative activity is at least a year away. And since all Members of the House face elections in the meantime, it’s pretty clear that the 2015 date is optimistic, to say the least. 

And did we mention that Messrs. Upton and Walden are both Republicans? While Democrats – and anybody in the Senate, for that matter – may very well share the Upton/Walden view that a revised Act is desirable, it’s not entirely clear how many of their colleagues on Capitol Hill support the Upton/Walden effort. The Energy and Commerce Committee website now features a “one-stop-shop” for information about “the committee’s plans for a #CommActUpdate”, but there’s no evidence currently on that site reflecting any formal Committee action. 

The site does include a link to the first promised white paper. Running three pages (not including a number of questions, described below) and titled “Modernizing the Communications Act”, the white paper is essentially a historical outline of the evolution of communications regulations since 1934. It points out that, besides the 1996 overhaul of the Act, other efforts to modify the Act have been piecemeal and, like the Act itself, segmented (or, to use the white paper’s term, “siloed”) according to technological sector – e.g., telephone, cable, broadcast. While that approach made sense in the beginning, it doesn’t work as well in the modern era of convergence and “intermodal competition”.

Of course, none of this is a surprise to anyone who has observed the communications industries for very long. But the process of change has got to start somewhere.

Perhaps best illustrating the very long road ahead for this project are the questions which the white paper poses for “stakeholder comment”. They include such fundamental, open-ended queries as:

Around what structures or principles should the titles of the Communications Act revolve?

What should a modern Communications Act look like?

How should the structure and jurisdiction of the FCC be tailored to address systemic change in communications?

How do we create a set of laws flexible enough to have staying power in the face of rapidly evolving technology? How can the laws be more technology-neutral?

Does the distinction between information and telecommunications services continue to serve a purpose? If not, how should the two be rationalized?

Obviously, we’re starting at the very, very beginning. 

While the Upton/Walden announcement – and related website, Twitter feed and white paper – seem sincerely aimed at starting an important inquiry, there are at least some indications that the effort may be less serious than it appears. Take, for example, the “#CommActUpdate” legend scrawled on the white board behind Upton and Walden in their video. (See graphic, above.) It looks more like a high schooler’s graffiti than the emblem of a landmark Congressional initiative.

Another example: while the white paper invites comments about any or all of the sprawling questions that it asks, the deadline for those comments is January 31, 2014 – barely three weeks after they were first announced. Such an appallingly abbreviated turn-around time for comments on such vast and – thus far, at least – unanswerable questions seems to send the wrong message. (Anyone who decides to take a crack at responsive comments should send them to CommActUpdate@mail.house.gov.)

An interesting question for broadcasters is what might emerge from a re-write of the Act by a Congress and FCC plainly focused on the telecommunications industry, not broadcasting (which, we all must admit, is viewed in some quarters as a fossil technology). Some hope on this score is offered by the involvement of Walden, who is a prominent former broadcaster. But he doesn’t dwell on broadcasting’s virtues in the posted video, or suggest how it might be regulated, or deregulated, in an overhaul of the Act.

A lot of roadblocks to the modernization effort remain on the road to the promised land. Perhaps the trip has started; perhaps not. Check back here for updates.