The Communications Act of 1934 is long past its prime like a comfortable but obsolete mobile phone your grandparent uses, and like the grandparent, Congress just can’t give up the old phone.
The telecommunications landscape of 1934 bears no resemblance to the present. Radio was the rage and television was new, not asserting its dominance until after World War II. Ma Bell was the telecommunications industry, and she was shacked up with Uncle Sam, who kept her in style. Fax machines, satellites, mobile phones, fiber optics, computers and the internet were the stuff of science fiction.
Congress has made some adjustments over the years, notably in 1984, to address cable and in 1996 with deregulation and an attempt to deal with the internet. But let’s be serious, these were well-meaning attempts to try to make an old mobile download an app they weren’t designed for.
We need a communications law that is more like a smartphone: multifunctional and with the flexibility to download and install new apps as a need presents itself. We need it to be resilient and unlikely to crash. We also want it to be user friendly. So where do we start? Here are a few ideas.
Let’s start by looking at the purposes defined in the 1934 Communications Act, which were:
“For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States … a rapid, efficient, nationwide and worldwide wire and radio communication service with adequate facilities at reasonable charges.
“For the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communication.
“For the purpose of securing a more effective execution of this policy by centralizing authority heretofore granted by law to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication …”
They’re noble aspirations but perhaps a bit dated. For many, “adequate facilities” are if anything overwhelming though they might take issue with “reasonable charges.” Internet regulation is notably light. In the United States, underserved communities are often impoverished communities. The FCC has become increasing ineffective at implementing policy as its policies are the subject of a constant stream of litigation. Let’s get back to basics.
These are the essentials, circa 1934:
—Access is essential and we have a long history of making communications systems cost and infrastructure accessible to the public.
—Provisioning of emergency cervices communication is an existing, and laudable project. While a difficult task, it is worthy of continuing focus.
—Centralized Authority was a mantra in 1934 but in 2017 flat, decentralized organizations are more adaptable to change.
A number of current FCC functions rest uneasily within the commission if we take the act at its word. For example:
—Spectrum management and licensing would be relocated to the Department of the Interior, which already manages other public resources.
—Competition and ownership would be reallocated to the Department of Justice, which already reviews anti-competitive practices.
—Engineering and technology is already in the domain of the National Institute of Standards and Technology.
—Consumer protection could be handed to the FTC, where it logically sits.
It might seem that a new communications act written along these lines might be impotent and reallocated responsibilities would get short shrift, but we can design the law differently. Reallocated responsibilities should include the resources and personnel to support them, leaving the FCC to focus on access and emergency services.
Congress is understandably reluctant to write a new communications law, especially internet law, but it’s long past time to get rid of a law conceived for a telecommunication world where touch tone didn’t exist and the idea of hundreds of channels — let alone the internet — was a dream. Indeed, we live in a world where citizens are increasingly getting rid of cable TV and wireline phones in favor of broadband and mobiles, putting the 1984 cable amendment on the road to obsolescence only 35 years later.
The Communications Act of 1934 is 83 years old and was originally written to regulate technology for a world just falling in love with radio and telephony. Its time is past. Congress needs to fashion a law that is aware of the past, responsive to the present and adaptable to the future. Focusing on a few broad core missions enables a newly revitalized FCC to serve the public effectively.
