At Age 21, Telecommunications Act Needs to Grow Up
The Swine Line is the staff blog of Citizens Against Government Waste (CAGW) and the Council for Citizens Against Government Waste (CCAGW). For questions, contact firstname.lastname@example.org.
On February 8, 2017, the Telecommunications Act of 1996 turns 21 years old. Some might say, “Oh, here is a law that has stood the test of time.” But they would be wrong.
Enacted 12 years after the breakup of the Baby Bell companies, the Telecommunications Act of 1996 was written to promote competition in the local exchange carrier (LECs) markets by requiring incumbent local exchange carriers (ILECs) to lease parts of their networks to competitors at cost; provide wholesale discounts to competitors for any service provided by the ILEC; and, charge reciprocal rates in termination of calls to their networks and the networks of local competitors. At the time of enactment, telephones were, for the most part, land-line phones connected via copper wire to the home or business, and few people were connected to the internet.
While the telephone communications industry was heavily regulated under Title II common carrier restrictions, ensuing innovations, such as mobile phones and the internet, were lightly regulated by the Federal Communications Commission (FCC). This mostly hands-off policy allowed for rapid innovations in technology and expanded both the reach and capabilities that consumers now take for granted. The convergence of voice, data, and video created a new ecosystem that existing law is ill-equipped to regulate, and this problem was exacerbated under misdirected efforts by the Obama administration through the FCC.
The most harmful decision made by the FCC was to solve a problem that didn’t exist: net neutrality. On February 26, 2015, the FCC approved the Open Internet Order, which reclassified the internet as a Title II common carrier service, and subjected mobile services to many of the same provisions that previously dictated technology for land-line communications services. By reclassifying the internet as a Title II common carrier service, the FCC removed the privacy protections previously afforded to internet services through Federal Trade Commission (FTC). In essence, the FCC’s actions broke the internet far more destructively than if it had been left alone.
To repair the privacy void it created with the Open Internet Order, the FCC developed a new privacy regime for the internet. However, rather than harmonizing these new privacy rules with those used by the FTC under Section 5 of the Federal Trade Commission Act, the FCC invented entirely new rules that created a confusing mishmash of opt-in/opt-out criteria that does little to assure the American public that their information is protected.
It is now past time for Congress and the new administration to modernize telecommunications law. The first order of business should be to rescind the Open Internet Order and the privacy regulations that were approved by the FCC in October 2016. House Energy and Commerce Subcommittee on Communications and Technology Chairman Marsha Blackburn (R-Tenn.) has suggested that the FCC should make the first move to fix the Open Internet Order, and then Congress could step in and address the principles and definitions that most agree should be a component to protecting the internet.
What Rep. Blackburn is proposing could be part of a comprehensive rewrite of the twenty-one-year-old law that was enacted long before a hand-held device held access to all the information available on the internet. During the 113th Congress, then-House Energy and Commerce Chairman Fred Upton (R-Mich.) and Subcommittee on Communications and Technology Chairman Greg Walden (R-Ore.) issued a series of white papers seeking input from the public on modernizing the Communications Act. The Council for Citizens Against Government Waste weighed in on a number of the issues presented. This effort stalled during the 114th Congress. However, with the new Congress and a different administration in the White House, it is now time for the Telecommunications Act to grow up.