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Expect Tweaks to Communications Law, Not Overhaul, Former FCC Chairman Says

Wednesday, February 20, 2013

By Paul Barbagallo  

Congress is likely to make small tweaks to the Communications Act, despite calls for a major rewrite of the statute, Richard Wiley, chairman of Wiley Rein LLP, said Feb. 19.

The last revision to the Communications Act, in 1996, took Congress nearly ten years to complete, and was itself the first major update to the law since 1934, Wiley noted during an event hosted by the Hudson Institute, a conservative policy and research group in Washington.

“I would like to see a big new statute,” Wiley said. “I think that would make sense for the country. But I'm not sure how soon that would happen.”

Wiley said he foresees a series of smaller bills emerging from the congressional committees of jurisdiction, given the increasing number of interests involved--ranging from the cable and telecommunications industries to Silicon Valley high-tech firms to TV broadcasters.

When Congress passed that 1996 statute, Wiley pointed out, the internet was still in its infancy.

“The timing just wasn't right,” he said.

The 333-page Communications Act, as amended by the Telecommunications Act of 1996, mentions the word “broadband” three times, and the word “internet” only 10 times. The 128-page Telecom Act of 1996 mentions “broadband” in only one reference.

Currently, the Federal Communications Commission regulates telecommunications providers under Title II of the Communications Act, wireless carriers under Title III of the act, and cable operators under Title VI, even though the distinctions among these companies have blurred as telecom providers now offer video service, cable operators now offer voice service, and wireless carriers offer both voice and data service. The FCC treats broadcasters as public trustees, and some telecom providers as “common carriers.”

More Deregulation Needed, Wiley Says.

“It doesn't make sense anymore,” said Wiley, who served as chairman of the FCC from 1970 to 1977 and has since represented a diverse cross-section of the communications sector, including Verizon Communications Inc. and AT&T Inc. “Telephone and cable companies. are competing directly, which wasn't foreseen in the 1996 Act.”

Wiley said the FCC can take action on its own to alter the “siloed” regulatory structure. He did not indicate what specific actions the commission could take, but suggested that the agency's “forbearance” authority--to forbear from applying regulation--could be exerted to a greater extent.

“We just have to go, in my view, toward lesser regulation,” Wiley said. “That's the only way it works. Yes, we have to protect public safety; we have to make sure the disadvantaged are protected. But I think the forces of competition are going to provide a better answer…”

In November, 2012, AT&T filed a petition with the agency to establish so-called test zones where regulations left over from the original 1934 Communications Act should no longer apply.

The United States Telecom Association, an industry trade group that counts AT&T as a member, also filed a petition to reclassify all incumbent local exchange carriers in the country as “non-dominant,” which the group says will put them on more equal footing with wireless and cable competitors. If the FCC approves the petition, “dominant” carriers, including AT&T, Verizon, CenturyLink, and Windstream would be relieved of all currently applicable regulations for pricing and market entry and exit, as well as the obligation imposed upon them to file tariffs.

Both petitions are now under consideration at the FCC, and face opposition from public-interest groups and smaller rivals.

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