The U.S. law governing the telecommunications industry was last updated before Internet use was widespread, and Congress needs to begin the process of updating the law, a group of telecom experts said Friday.
But most speakers at a forum on updating the Telecommunications Act of 1996 also questioned if lawmakers were ready to dive into a huge and potentially contentious rewrite of the law. There's little agreement about what the next version of a communications law should look like, even if there's broad consensus that the Telecom Act is inadequate for the Internet, said Walter McCormick Jr., president and CEO of the United States Telecom Association.
"If you ask people, 'should we update the law?' I think that people say, 'yeah, why not?'" he said. "But when you then go to the next layer ... you need to have consensus about the problem before you have consensus on the solution."
McCormick, speaking at a Progress and Freedom Foundation (PFF) forum on rewriting the Telecom Act, questioned whether there were huge problems in the broadband market that could be solved with new legislation. Broadband adoption in the U.S. has grown quickly in the past decade, and most customers are happy with their broadband providers, he said.
One audience member disagreed. There are widespread complaints about U.S. broadband providers, and there have been multiple reports that the service in the U.S. isn't as good as is available in many other countries, said David Torgerson, an employee of the U.S. Department of Agriculture.
"Why is that perception out there?" he asked.
Much of the focus at the PFF event was on the U.S. Federal Communications Commission's announcement this week that it plans to reclassify broadband transmission as a regulated, common-carrier service in response to an appeals court ruling that the agency didn't have the authority to enforce informal network neutrality rules. FCC Chairman Julius Genachowski said the reclassification from a largely unregulated information service was needed to give the agency limited authority to pass net neutrality rules and to implement parts of its national broadband plan.
McCormick and Barbara Esbin, a senior fellow at PFF, questioned the FCC's authority to reclassify broadband as a regulated service. The FCC also doesn't have clear authority to move forward on several pieces of the national broadband plan, including subsidizing broadband deployment, protecting consumer privacy and improving cybersecurity, McCormick said.
"It's not the Federal Internet Commission," he said.
A rewrite of the Telecom Act would clearly define the FCC's role and authority, he added. Genachowski is "having to do contortions to try to figure out whether or not" the FCC has the authority to create net neutrality laws and move ahead with the national broadband plan, he said.
While most of the panelists agreed that a Telecom Act rewrite was needed, most also predicted Congress would only get started on a new law in the next three to five years. Some suggested that models for a new law already exist.
PFF, enlisting the help of several telecom law experts, drafted the Digital Age Communications Act in 2005, but a U.S. Senate bill based on that effort went nowhere. DACA would have taken away much of the FCC's rulemaking authority, allowing it to act only when there was unfair competition in the communications marketplace and not in the "public interest," the current standard for FCC action. FCC regulations would have sunset after five years under the bill.
Raymond Gifford, a former PFF president, lamented the lack of action on DACA. The PFF gathered a wide range of telecom law experts and came to consensus on many issues, he said at the forum.
A Telecom Act rewrite should do away with different types of regulations between mobile carriers, broadband providers and traditional telecom carriers, said Michael Calabrese, director of the Future Wireless Program at the New America Foundation, a Washington, D.C., think tank. A new law should include net neutrality rules, it should revamp telecom subsidies and possibly give them directly to customers, and it should anticipate that new devices will be able to find a use spectrum across multiple bands, he said.
It doesn't make sense for the FCC to treat mobile broadband differently from fixed broadband, with mobile carriers soon able to offer speeds that compete with some fixed broadband services, he said. It's difficult now to draw the line between a traditional telecom service, broadband and other services regulated by the FCC, he said.
A Telecom Act rewrite may be necessary in the long term, but the Internet industry can work on consensus issues in the meantime, said Link Hoewing, assistant vice president for Internet and technology issues at Verizon Communications. Hoewing called for the industry to create a technical advisory committee that could help broadband providers deal with problems such as network congestion without raising concerns that they were violating net neutrality principles.
Verizon and Google filed joint comments in January in the FCC's net neutrality rulemaking proceeding. In the filing, the two companies called for industry cooperation to protect customers' access to open networks and to provide customers with better information about broadband speeds and quality. The two companies agreed that the FCC should not regulate Internet content and services.
But Hoewing also criticized Genachowki's efforts to reclassify broadband as a common-carrier service. "We need to have a statutory framework that works with the Internet ecosystem," he said. "With the statute we're working with today, you have to torture it to make anything work [at the FCC]."