113th Congress: Cooperation and Convergence?

(Blogmeister’s Note: FHH Telecom Law welcomes back guest commentator Catherine McCullough. This month she provides her perspective on trends that will impact communications clients in the 113th Congress. Catherine is a Vice President at DCI Group where she counsels clients in federal policy matters.

The Worst Congress Ever has just wrapped up its business. Where do we go from here?

As I write this, the gavel on the 112th Congress’ last votes fell just days ago. The ignominious 112th Congress is doing its walk of shame back home from Washington and all around town its performance is being summed up: “Worst. Congress. Ever.”

Writing about the specific telecom issues facing Congress at the beginning of the last session, I speculated that the 112th would be heavily influenced by love and money. In other words, Congress needed to confer incentive auction authority on the FCC and pass a few pro-consumer measures (involving, e.g., protection of online privacy). And sure enough, Congress did take care of the auction issue – bringing money into the Treasury seemed to be a priority.   Some progress was made on the privacy front, but not all of it through the legislative process.

But at the beginning of the new 113th Congress, rather than talk about specific issues I want to focus more on how two other trends will shape communications policy: cooperation and convergence.

When I talk about “cooperation,” I mean the ability to get work done in the absence of a well-functioning legislature.

The 112th Congress seemed unable to create the trust relationships necessary to get big bills passed. In the Senate, the absence of “get-it-done” negotiators like Ted Kennedy, Ted Stevens and Fritz Hollings and the loss of dealmakers like Richard Lugar were felt keenly when it came time for Congress to work as a team. (The passing of Daniel Inouye, another long-time dealmaker, at the end of 2012 will only make matters worse in the coming term.) On the House side, “cooperation” was in short supply, as leadership was pressured by a tea party minority unwilling to cut deals.

But even if Congress couldn’t seem to function particularly effectively through its regular procedures, there were a few bright spots elsewhere in the federal government, as some policy progress was made through cooperative efforts between regulators and the private sector.  International Internet governance and privacy-related issues, for example, benefited from processes that brought multiple stakeholders together to address and resolve matters of common interest. In these cases, strong communication between regulators and industry led to progress on solutions that were created by, and that worked for, many at the table.

Such stakeholder-based processes – now being called “multi-stakeholdering” processes by agencies engaging in them, such as the Department of Commerce and the Federal Trade Commission – reflect a collaborative approach led by government agencies, but dependent on mutual engagement rather than classic “top-down” regulation.

This collaborative approach has been used in the past to regulate industries that rely on rapidly evolving technologies. Such technologies present constantly moving targets not easily subject to effective regulation even by the more nimble administrative procedures available to agencies, much less the cumbersome and glacial legislative processes of Congress. Indeed, in many instances formal governmental regulation (or legislative) can have the undesirable effect of discouraging or frustrating innovation. In these cases, cooperation between regulators and industry often yields the best outcome for consumers.

The Federal Trade Commission, for example, used the method to push the nascent online behavioral advertising industry to conform to standards that both protect consumers and allow reasonable use of consumer data by businesses.

It may be hard for those of us used to the FCC’s “top-down” regulatory approach to see a time when the agency leans more toward multi-stakeholdering processes, they may, if properly crafted, prove beneficial.

From a practical perspective, the FCC may have to seek multi-stakeholdering solutions if it wants to be a part of the next big trend in our industry: convergence.

When most pundits talk about convergence, they focus on the merging of one or more technologies historically utilized in one industry to other, seemingly disparate, industries. For example, the increasing use of mobile wireless technologies by the automobile industry has spawned the field of “telematics” – also called “connected cars” – something you’ll hear more about at the next Consumer Electronics Show. But those of us in Washington might want to consider how convergence may affect the process of policymaking now.

For instance, convergence could mean major shifts in the policymaking power structure. Take the example of the connected car. The National Highway Traffic Safety Administration (NHTSA, part of the Department of Transportation) has the power to dictate product safety standards for automobiles. It also has jurisdiction over distracted driving. But who has jurisdiction when a distraction is caused by a mobile device brought in to a car?

Right now, NHTSA is creating “voluntary guidelines” that can result in the imposition of liability on the mobile industry in civil lawsuits, even though the agency doesn’t directly regulate the mobile device and wireless industries. But the Secretary of Transportation has signaled that he may go farther by adopting other measures to stop distracted driving. This could include seeking direct jurisdiction over at least some aspects of the industry.

The jurisdictional impact of convergence will be felt beyond the agencies. For instance, if NHTSA seeks more regulatory control, the Congressional subcommittee which oversees the NHTSA may as a result become involved in overseeing some aspects of technologies the FCC previously considered its turf.

Given the number of industries whose operations are becoming increasingly dependent on, and thus converging with, mobile wireless systems – transportation, healthcare, commerce, to name the most obvious ones – you can see that we might be facing a new regulatory world where jurisdictional issues must be confronted and thrashed out.

I’m most interested to see how the changing technological landscape will affect the FCC. How will the Commission seek to involve – or not involve – itself in these new fields? Will it try to add more arrows to its regulatory quiver? Will it ask Congress for major structural changes to the Communications Act, or can it use its authority under the existing Act to quietly adopt new strategies?

Though no one may be able to predict every issue that will confront the 113th Congress, there is one thing I do believe: those who work in the broad field of communications will live in a changed (and more converged) atmosphere. We will likely have to learn new methods of policymaking, new policymakers, and new policymaking cultures – ones that rely on more cooperative, multi-dimensional methods of finding solutions that work for all of us.