Recently the FCC announced that it would regulate Internet service providers under Title II of the Communications Act. The decision has attracted a great deal of attention in the media and there is currently a vigorous debate about efficacy of this new policy. Regardless of those questions the FCC rules obscure larger issues with regulations issues in this sector. The last authorization of the Communications Act was passed in 1996. There is widespread bipartisan agreement that Congress should play a larger role. The Communications Act outlines what actions the FCC may and may not take. These restrictions make it difficult for the FCC to craft optimal policies. But, Congress operates under far fewer restrictions. At a recent Brookings event, Nonresident Senior Fellow Stuart Brotman discussed three ideas for improving the stale law.
The original Communications Act of 1934 requires that broadcasters operate in the “public interest, convenience and necessity”. Congress failed to fully define the enigmatic term. The FCC and the courts have struggled to craft and interpret regulations since 1934 because of the lack of clarity. If Congress devoted itself to thinking critically and developing a well-thought-out standard, then it would make it easier for the FCC to regulate future communications technologies. Instead of venturing into new policy territory with every new innovation, it could apply a clear standard.
The rapid clip of innovation means that new technologies emerge even quicker than in the past. This means that regulators can’t just focus on today’s policy conundrums but must also be fortune tellers. This is an impossible task. Sunset clauses in a reauthorized Communications Act would require FCC to reconsider whether regulations made sense after a set period of time. If a section of a law seemed hopelessly antiquated, then it could expire. This would place political pressure on Congress to update the law.
The Internet is not just an engine for commerce but a dynamic platform that is useful for a variety of tasks. From a regulatory perspective this presents a complex challenge. A company that sells an app for measuring bio stats could fall under the purview of numerous federal agencies. Today more companies cross these jurisdictional borders. Congress can help by redefining the responsibilities of agencies. This will help to reduce uncertainty for businesses and ensure that bad actors are caught rather than slipping through cracks of the system.
Below is video from the full event. More TechTank articles are available here.